1934985 (Migration)

The Administrative Appeals Tribunal considered an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to be recognised as a carer for an Australian resident, necessitating an assessment of whether the resident required assistance that could not be reasonably provided by other relatives or obtained from Australian welfare, hospital, nursing, or community services. The resident had multiple medical conditions, including congestive cardiac failure, severe asthma, rheumatoid arthritis, osteoporosis, osteoarthritis, and a brain tumour, which resulted in moderate functional impairments affecting her ability to perform daily activities, including bathing, toileting, medication supervision, personal safety supervision, and transportation.

The primary legal issue before the Tribunal was whether the applicant met the definition of a "carer" under Regulation 1.15AA of the Migration Regulations 1994. This required determining if the resident had a medical condition causing physical, intellectual, or sensory impairment necessitating direct assistance with daily life, and crucially, whether such assistance could not reasonably be provided by other eligible relatives or obtained from Australian community services. The Tribunal also had to consider the applicant's eligibility as a "remaining relative" under Subclass 835, which required that no near relatives reside in the same country as the applicant.

The Tribunal's reasoning focused on the assessment of the resident's functional capacity and the availability of alternative assistance. While the Carer Visa Assessment Certificate confirmed significant functional impairments and a need for direct assistance, the Tribunal found that the investigation into available community services was limited. Furthermore, the Tribunal noted that the applicant had near relatives residing in the same country as her, who were not Australian citizens, permanent residents, or eligible New Zealand citizens. This fact alone disqualified the applicant from meeting the criteria for a Subclass 835 (Remaining Relative) visa, as defined in Regulation 1.15(2).

Consequently, the Tribunal affirmed the decision not to grant the applicant the visa.