Asha Rani (Migration)

This matter concerned an appeal by Asha Rani against a decision to refuse her application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The dispute centred on whether the sponsorship requirements under clause 836.213 of the Migration Regulations 1994 were met. The applicant claimed to be a carer for her husband, Mr Joginder Paul, who was identified by the original decision-maker as the Australian relative. However, the applicant's son, Mr Vivek Kumar, was the proposed sponsor.

The primary legal issue before the Tribunal was to determine whether the sponsorship requirements of clause 836.213 were satisfied, particularly in light of the Federal Court's decision in *Nguyen v MICMSMA* [2020] FCA 1732. This required the Tribunal to consider whether the sponsor (Mr Vivek Kumar) and the care recipient (Mr Joginder Paul) needed to be the same Australian relative, or if they could be different individuals. The Tribunal also had to assess if Mr Vivek Kumar met the criteria to be a valid sponsor as an Australian relative.

The Tribunal reasoned that, following the principles established in *Nguyen*, there was no requirement for the sponsor and the care recipient to be the same person. The Court in *Nguyen* had clarified that the "Australian relative" referred to in clause 836.213 was distinct from the "Australian relative" identified in clause 836.212, who is the person requiring care. Applying this to the present case, the Tribunal found that Mr Vivek Kumar, as the applicant's son and an Australian citizen who had settled in Australia and was usually resident there, met all the requirements of clause 836.213 to be a valid sponsor.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the sponsorship criterion under clause 836.213 was met. The Minister was to proceed to consider the remaining criteria for the Subclass 836 visa.