Akouch (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to establish that they were a carer of an Australian resident. The primary decision maker had not been satisfied that the applicant met the criteria, primarily due to the absence of a Carer Certificate at the time of the initial decision. The applicant subsequently provided a Carer Certificate to the Tribunal, which was issued by BUPA on 5 August 2019. This certificate indicated that the resident had a medical condition causing significant impairment in daily life, requiring direct assistance for at least two years, and assigned an impairment rating of 30. The Tribunal was asked to review the decision.

The legal issues before the Tribunal were whether the applicant met the definition of a "carer" as defined in regulation 1.15AA of the Migration Regulations 1994, and specifically whether the Carer Certificate provided satisfied the requirements of subregulation 1.15AA(2) and addressed the matters outlined in subregulation 1.15AA(1)(b)(i)-(iv). The Tribunal also had to consider the implications of the original delegate not assessing the remaining criteria due to the initial lack of a valid Carer Certificate.

The Tribunal reasoned that the Carer Certificate provided by the applicant met the requirements of regulation 1.15AA(2) and addressed each of the matters specified in regulation 1.15AA(1)(b)(i)-(iv). Consequently, the Tribunal was satisfied that the requirements of regulation 1.15AA(1)(b) and (c) were met. However, the Tribunal noted that the original delegate had not assessed the other criteria under regulation 1.15AA because no relevant Carer Certificate was available at that time. In light of this, the Tribunal determined that the most appropriate course of action was to remit the matter for reconsideration by the delegate, allowing for a full assessment of all remaining criteria.

The Tribunal remitted the application for an Other Family (Residence) (Class BU) visa for reconsideration. The Tribunal directed that regulations 1.15AA(1)(b) and (c) for the purpose of clause 836.221 of Schedule 2 to the Regulations were to be considered met.