2010052 (Migration)

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, Subclass 116 (Carer), before the Tribunal. The applicant sought to be recognised as a carer for their Australian resident sister, who had medical conditions including Autistic Spectrum Disorder and ADHD. The core of the dispute revolved around whether the applicant met the definition of a "carer" as prescribed by the Migration Regulations 1994.

The Tribunal was required to determine whether the visa applicant satisfied the criteria for being a carer under clause 116.221 of Schedule 2 to the Regulations. Specifically, this involved assessing whether the applicant was a relative of the Australian resident, whether a valid certificate established the resident's medical condition, the resulting impairment, and the ongoing need for direct assistance. Crucially, the Tribunal also had to consider whether such assistance could reasonably be provided by other relatives or obtained from Australian services, and whether the applicant was willing and able to provide the necessary assistance.

The Tribunal found that the applicant was indeed a relative of the resident, satisfying regulation 1.15AA(1)(a). Furthermore, a Carer Visa Assessment Certificate (CVAC) dated 21 January 2022, issued by Bupa Medical Visa Services, confirmed that the resident's daughter had medical conditions causing impairments and a continuing need for direct assistance for at least two years, meeting the requirements of regulation 1.15AA(1)(b). However, the Tribunal noted that other criteria, including the availability of alternative assistance and the applicant's capacity to provide care, had not yet been fully considered.

Consequently, the Tribunal remitted the applications for reconsideration by the Minister, with a direction that the criteria under clause 116.221 of Schedule 2 to the Regulations were met. This allowed for the assessment of the remaining criteria for the Subclass 116 visa, including those pertaining to the secondary visa applicant.