Fitzgerald (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to migrate to Australia to care for their Australian resident husband. The decision was made by Deputy President Justin Owen.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a carer visa, specifically concerning the definition of a "carer" as set out in regulation 1.15AA of the Migration Regulations 1994. This involved determining if the applicant was a relative of the Australian resident, if a valid certificate established a medical condition requiring ongoing care, and if such assistance could not reasonably be provided by other means in Australia.

The Tribunal found that the applicant was a relative of the Australian resident, her husband, and that a valid Carer Visa Assessment Certificate (CVAC) had been issued, confirming the husband's medical condition, the resulting impairment, and the ongoing need for direct assistance for at least two years. The Tribunal noted that while the applicant and sponsor had been in a genuine and continuing relationship since 1998 and had children together, they had not sought advice regarding a Partner visa, which might have been a more straightforward pathway. Despite this observation, the Tribunal concluded that the criteria for the Carer visa were met.

The Tribunal remitted the application for reconsideration with a direction that the criteria for the Subclass 836 (Carer) visa, specifically clause 836.221 of Schedule 2 to the Regulations, were met.