Fatfat (Migration)

This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision to refuse to grant Other Family (Residence) (Class BU) visas, specifically Subclass 836 (Carer) visas, to Ms Tayba Fatfat and her family. The applicants sought to migrate to Australia to care for Ms Fatfat's grandson, an Australian citizen, who had a serious medical condition. The delegate's decision was based on the assessment that the grandson did not have a Carer Visa Assessment Certificate (CVAC) with the required impairment rating at the time of the decision.

The primary legal issue before the Tribunal was whether Ms Fatfat qualified as a "carer" under regulation 1.15AA of the Migration Regulations 1994 at the time of the delegate's decision. This required determining if the grandson, the Australian relative, had a medical condition causing significant impairment and a continuing need for direct assistance, as evidenced by a CVAC meeting specific regulatory requirements. The Tribunal also considered whether Ms Fatfat was a "relative" of the grandson and whether the grandson's medical condition met the criteria for impairment and ongoing care needs.

The Tribunal reasoned that while the applicant was a relative of the grandson and the grandson clearly required ongoing care, the crucial factor was the absence of a valid CVAC at the time of the delegate's decision. A CVAC issued on 15 June 2018 indicated that the grandson's condition was not stabilised, his prognosis was unclear, and he was still undergoing treatment, preventing an impairment rating. However, a subsequent CVAC dated 4 October 2023, issued after the delegate's decision, did assign an impairment rating of 30 and confirmed permanent care needs. The Tribunal concluded that the matter should be remitted for reconsideration, acknowledging the later-issued CVAC which demonstrated the grandson's ongoing need for care and the applicant's role in providing it.