Assaf (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa, made by Hanadi Assaf on behalf of her mother, Samira Salame, who is an Australian resident. The core dispute revolved around whether Ms Assaf met the definition of a "carer" as prescribed by regulation 1.15AA of the Migration Regulations 1994, which is a prerequisite for satisfying clause 836.221 of Schedule 2 to the Regulations. The Tribunal, presided over by Jennifer Cripps Watts, was tasked with determining if the applicant had established that the assistance required by her mother could not be reasonably provided by other Australian relatives or obtained from Australian welfare, hospital, nursing, or community services.

The primary legal issue before the Tribunal was the interpretation and application of regulation 1.15AA(1)(e). This subregulation requires an applicant to demonstrate that the necessary assistance for the sponsor cannot be reasonably provided by any other relative of the sponsor who holds Australian citizenship, permanent residency, or is an eligible New Zealand citizen, nor can it be obtained from Australian welfare, hospital, nursing, or community services. The Tribunal noted that the elements of regulation 1.15AA are cumulative, meaning failure to satisfy any one element would result in the applicant not meeting the definition of a carer for the purpose of the visa subclass.

The Tribunal's reasoning focused on the evidence presented, including reports from an occupational therapist and a psychologist concerning the sponsor's medical condition, which indicated a need for permanent assistance. While acknowledging the sponsor's ill health and ongoing need for care, the Tribunal concluded that the matter should be remitted for reconsideration. This decision was based on the finding that the applicant had not sufficiently demonstrated that the assistance required by the sponsor could not be reasonably obtained from other relatives or community services in Australia, despite the sponsor's significant medical needs.

Consequently, the Tribunal remitted the applications for the Subclass 836 (Carer) visas for reconsideration by the Minister, with a direction that the criteria under clause 836.221 of Schedule 2 to the Regulations were to be considered met.