Hoang (Migration)

The Administrative Appeals Tribunal considered an application for an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer), made by the first applicant, who sought to care for her Australian resident mother. The second applicant, the first applicant's daughter, was also included in the application. The core dispute revolved around whether the applicants met the criteria for the visa, particularly the requirement that assistance could not be reasonably provided by other specified relatives or obtained from service providers, and that the applicant was a "carer" as defined by the regulations.

The Tribunal was required to determine if the first applicant qualified as a "carer" under regulation 1.15AA, which involved assessing whether she was a relative of the Australian resident, whether a valid certificate demonstrated the Australian resident's medical condition and need for care, and whether the applicant was willing and able to provide substantial and continuing assistance. Additionally, the Tribunal had to consider the eligibility of the second applicant as a member of the family unit, specifically whether she met the definition of a dependent child at the time of application.

The Tribunal found that the first applicant was a relative of the Australian resident, her mother, and that the sponsor was an Australian resident. While a Carer Visa Assessment Certificate from 2016 was considered, the Tribunal also relied on a more recent medical report from the sponsor's treating doctor, which confirmed her ongoing need for direct assistance. Based on this, the Tribunal was satisfied that the first applicant met the definition of a carer. Regarding the second applicant, the Tribunal noted that she was over 18 at the time of application and did not meet the definition of a dependent child under regulation 1.03(b)(ii) due to a lack of evidence of incapacity for work. The Tribunal also considered whether she was dependent under regulation 1.05A.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. This was because the Tribunal could not make a definitive finding that the first applicant would be granted the Subclass 836 visa, which was a prerequisite for assessing the second applicant's eligibility under clause 836.321. The Tribunal indicated it would consider alternative criteria for the second applicant under clause 836.311.