Del Mundo (Migration)

The Administrative Appeals Tribunal considered an application for an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer). The applicant sought review of a decision not to grant the visa, with the core dispute concerning whether the applicant was the carer for Ms Maxima Duke, an Australian relative. The Tribunal affirmed the decision to refuse the visa.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a carer visa as at the date of the Tribunal's decision. Specifically, the Tribunal had to determine if the applicant was providing, or could provide, the necessary care to Ms Duke, who was an Australian relative. The Migration Regulations 1994, particularly clause 836.221, stipulate that the 'time of decision' is a crucial factor in assessing eligibility.

The Tribunal reasoned that while the applicant was a relative of Ms Duke, the critical requirement of being a carer could not be met because Ms Duke had passed away on 31 January 2022. As Ms Duke was deceased at the time of the Tribunal's decision, the applicant could no longer be considered her carer. This fact was known to the applicant's legal representative since at least 11 April 2022, when a death certificate was provided to the Tribunal. The Tribunal found no basis for Ministerial intervention, despite the applicant's representative seeking it on the grounds of alleged jurisdictional error by the Department. Consequently, the Tribunal affirmed the decision not to grant the visa.