2009607 (Migration)

This matter concerned an appeal to the Tribunal regarding a decision to refuse a Subclass 836 (Carer) visa. The applicant, a citizen of Sweden, applied for the visa on the basis that he was the carer of his sister, who was an Australian citizen residing in Australia. The secondary applicant was the applicant's wife. The primary issue before the Tribunal was whether the applicant met the criteria for the visa, particularly in light of the subsequent death of his sister.

The Tribunal was required to determine whether the applicant claimed to be the carer of an Australian relative at the time of application, whether the sponsorship requirements were met at that time, and crucially, whether the applicant was the carer of an Australian relative at the time of the Tribunal's decision. The Tribunal also considered whether the secondary applicant met the criteria and whether the matter warranted referral for Ministerial Intervention.

The Tribunal found that the applicant did meet the requirement of claiming to be the carer of an Australian relative at the time of application, and that the sponsorship requirements were also met at that time, with the applicant's daughter being the sponsor. However, the Tribunal determined that the applicant did not meet the requirement of being the carer of an Australian relative at the time of the decision, as his sister had passed away in 2021. Consequently, the applicant did not satisfy the criteria for the Subclass 836 visa, and by extension, the secondary applicant also did not meet the requirements. The Tribunal also found that the applicant did not meet the criteria for a Subclass 838 (Aged Dependent Relative) visa or a Subclass 835 (Remaining Relative) visa. While acknowledging the difficult circumstances, including the death of the applicant's sister and the applicant's family ties in Australia, the Tribunal concluded that these factors did not alter the legal requirements for the visa.

The Tribunal affirmed the decision under review, finding that the applicant did not meet the criteria for the Subclass 836 visa. The Tribunal also found that the applicant was not entitled to the grant of a Subclass 838 or Subclass 835 visa. The Tribunal considered the request for Ministerial Intervention but ultimately concluded that the applicant did not meet the criteria for the visa.