Cavanagh (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant claimed to be the carer of her mother, who was an Australian resident. The dispute centred on whether the applicant met the definition of a 'carer' as required by the regulations, particularly in relation to the Australian resident and the concept of a 'member of the family unit'.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a Subclass 836 visa, specifically cl.836.221, which requires the applicant to be a carer of an Australian relative at the time of the decision. This involved determining whether the applicant's mother, the person requiring care, was a 'member of the family unit' of the Australian resident (the applicant's sister) and her spouse, the sponsor. The definition of 'member of the family unit' under r.1.12(1)(e) of the Migration Regulations 1994 was central to this determination, requiring the relative to be usually resident in the family head's household.

The Tribunal reasoned that the provided evidence, including application forms, statutory declarations, and a Carer Visa Assessment Certificate, indicated that the applicant's mother resided at a different address from her sister and brother-in-law. This suggested that the mother was not usually resident in the household of the Australian resident and sponsor. Consequently, the Tribunal concluded that the mother was not a 'member of the family unit' of the Australian resident as defined by the regulations. The Tribunal also noted that the applicants were not eligible for Subclass 835 (Remaining Relative) visas because their near relatives resided in Papua New Guinea, meaning they did not meet the definition of a 'remaining relative'.

The Tribunal affirmed the decision not to grant the applicants the Subclass 836 visas.