Gurung (Migration)

This matter concerned an application for review of a delegate's decision to refuse to grant Mr Manoj Gurung, a national of Nepal, an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer). Mr Gurung applied for the visa on the basis that he is a carer for his Australian citizen father, Mr Em Bahadur Gurung, who is 83 years old. Mr Gurung's wife and two children remained in Nepal.

The primary legal issue before the Tribunal was whether Mr Gurung met the criteria for a Subclass 836 visa, specifically whether he was a 'carer' of his Australian relative as defined by the Migration Regulations 1994. This involved determining if the applicant was a relative of the resident, if a certificate (CVAC) certified the resident's medical condition and need for care, and crucially, if assistance could not reasonably be provided or obtained from other relatives or welfare services.

The Tribunal considered the definition of 'carer' under regulation 1.15AA, which requires the applicant to be a relative of the Australian resident and for a CVAC to certify the resident's medical condition and ongoing need for care. While the applicant was accepted as a relative and a CVAC indicated the father had an impairment rating of 30 due to osteoarthritis, chronic back pain, dizziness, and balance issues, the delegate had refused the visa on the basis that regulation 1.15AA(1)(e)(i) was not met. This was because the delegate found it had not been demonstrated that it would be unreasonable for the resident's other Australian relatives, including a son and daughter, to provide the required care collectively or individually. The Tribunal noted that the applicant's previous representative had indicated an intention to submit evidence addressing why other relatives could not provide care, and evidence regarding the unreasonableness of obtaining assistance from welfare, hospital, nursing, or aged care support providers, but this evidence was not received.

The Tribunal affirmed the delegate's decision to refuse the visa.