Heidari (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding a decision not to grant Other Family (Migrant) (Class BO) visas, specifically Subclass 116 (Carer) visas. The primary applicant, Mr. Nisar Ahmed Heidari, had passed away, and his brother, Mr. Wakil Ahmed Heidari, a secondary applicant, sought to assume the role of primary applicant and carer for the Australian relative. The Tribunal was required to determine whether the secondary applicant met the criteria for the visa, particularly in relation to claiming to be the carer of an Australian relative.

The central legal issue was whether Mr. Wakil Ahmed Heidari could satisfy subclause 116.211 of the Migration Regulations 1994, which mandates that a visa applicant must claim to be the carer of an Australian relative. The Tribunal also considered the definition of "Australian relative" and "relative" as provided in the Regulations. The Tribunal's reasoning focused on the evidence presented regarding the care needs of the Australian relative and the existing care arrangements.

The Tribunal found that while Mr. Wakil Ahmed Heidari was a "relative" of the Australian resident, the evidence did not establish that he met the criteria to be the carer. Crucially, the Tribunal noted the presence of a paid carer, Saamya, who had been providing care for four to five years, attending to the Australian relative's needs including transport, meals, and medication management. Saamya's evidence confirmed she currently provided care two days a week, with plans to increase this to four days, and that another carer attended on Wednesdays. The Tribunal also noted the involvement of a case manager for occupational and physiotherapy requirements. Given these existing care arrangements and the lack of a clear claim by Mr. Wakil Ahmed Heidari to be the primary carer, the Tribunal concluded that the criteria for the visa were not met.

Consequently, the Administrative Appeals Tribunal affirmed the decision not to grant the Other Family (Migrant) (Class BO) visas to the applicants.