2309535 (Migration)

The Federal Circuit and Family Court considered an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to migrate to Australia to care for his mother, an Australian citizen. The dispute centred on whether the applicant met the criteria for being a "carer" under the Migration Regulations 1994, particularly concerning the inability of other Australian relatives or services to provide the necessary care.

The court was required to determine whether the applicant was a "carer" as defined by regulation 1.15AA of the Migration Regulations 1994. This involved assessing whether the sponsor (the applicant's mother) had a medical condition causing a physical, intellectual, or sensory impairment requiring direct assistance with daily life, and whether this need for assistance was ongoing. Crucially, the court had to consider whether such assistance could reasonably be provided by other relatives in Australia or obtained from Australian welfare, hospital, nursing, or community services.

The Tribunal found that the applicant had claimed to be the carer of an Australian relative, satisfying clause 836.212 of the Regulations. Furthermore, the Tribunal concluded that the applicant was a carer under clause 836.221, having been provided with substantially more evidence than previous decision-makers. This evidence included statutory declarations, supporting statements from relatives and service providers, and medical reports. The Tribunal accepted assurances that the applicant was not isolating his mother and that he understood the importance of her contact with other family members. Given the extensive evidence presented, including details about the sponsor's health, the limitations of other relatives, and the specific care needs, the Tribunal determined that the matter should be remitted for reconsideration. The Tribunal remitted the application for the visa to the Minister with a direction that clauses 836.212 and 836.221 of Schedule 2 to the Regulations were met.