Butrus (Migration)

This matter concerned an application for review of a delegate's decision to refuse to grant Other Family (Residence) (Class BU) visas, Subclass 836 (Carer) visas, to Ms Abeerah Hirmiz Minas Butrus and her family. The applicants sought to be granted these visas on the basis that Ms Butrus was a carer for her mother, Ms Lailah Mano Shabo, an Australian permanent resident.

The primary legal issues before the Tribunal were whether Ms Butrus met the definition of a "carer" as defined in regulation 1.15AA of the Migration Regulations 1994, and whether she satisfied the criteria under clause 836.221 of Schedule 2 to the Regulations at the time of the delegate's decision. Specifically, the Tribunal had to determine if Ms Butrus was a relative of her sponsor, Ms Shabo, and if a Carer Visa Assessment Certificate (CVAC) was in effect at the time of the delegate's decision, which would confirm Ms Shabo's medical conditions and need for direct assistance.

The Tribunal found that Ms Butrus had provided sufficient evidence to establish her relationship as the daughter of Ms Shabo, thus meeting the "relative" requirement of regulation 1.15AA(1)(a). However, the delegate's decision was made without a CVAC in place for Ms Shabo. While a CVAC dated 12 May 2023 was later provided to the Tribunal, it was not available at the time of the delegate's decision on 27 May 2019. The Tribunal noted that the delegate had not considered the possibility of assistance from other specified relatives or service providers, nor had evidence from all available witnesses been heard.

Consequently, the Tribunal concluded that the matter should be remitted for reconsideration. This remittal was based on the absence of the CVAC at the time of the delegate's decision and the need for a comprehensive assessment of the evidence, including the potential for alternative care arrangements and the hearing of all relevant witness testimony.