Dayal (Migration)

The Administrative Appeals Tribunal considered a decision concerning an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The primary applicant sought to be recognised as the carer of an Australian relative, who was identified as their cousin. The core dispute revolved around whether the familial relationship between the applicant and the sponsor met the regulatory definition of 'relative' for the purposes of the visa subclass.

The Tribunal was required to determine if the primary applicant met the criteria under clause 836.212 of Schedule 2 to the Regulations, which mandates that the applicant claims to be the carer of an Australian relative. This, in turn, necessitated an examination of the definition of 'Australian relative' and 'relative' as provided in the Regulations. The Tribunal also considered the applicants' request for the matter to be referred to the Minister for intervention on compassionate grounds, given the alleged serious harm and hardship to the Australian citizen.

The Tribunal found that a cousin is not included within the definition of 'relative' as defined in rule 1.03 of the Regulations. Consequently, the primary applicant did not satisfy the requirements of clause 836.212, and therefore did not meet the criteria for a Subclass 836 visa. As the primary applicant failed to meet the criteria, the secondary applicants also could not meet the criteria as members of the family unit. The Tribunal also considered alternative visa subclasses, Subclass 838 (Aged Dependent Relative) and Subclass 835 (Remaining Relative), but found that the applicants did not meet the prescribed criteria for these visas either, primarily due to a lack of evidence of dependency and the familial relationship not being of the type prescribed.

The Tribunal affirmed the decision not to grant the applicants the Other Family (Residence) (Class BU) visas. It noted that the primary applicant could still make an application for Ministerial consideration directly through the Department.