Jabr (Migration)

The Administrative Appeals Tribunal considered an appeal by visa applicants concerning applications for Other Family (Migrant) (Class BO) visas, specifically Subclass 116 (Carer) visas. The dispute centred on whether the applicants met the criteria to be granted these visas as carers for an Australian relative, with the sponsor’s daughter, who was informally caring for both parents, facing challenges in meeting the requirements.

The primary legal issue before the Tribunal was to determine whether the applicants satisfied the criteria for a Subclass 116 (Carer) visa, particularly in relation to the definition of a "member of the family unit" and the requirement for assistance to be reasonably obtained from service providers. The Tribunal also had to consider the specific circumstances of the oldest child, who was over 23 and financially dependent, in relation to their eligibility.

The Tribunal reasoned that while the sponsor’s daughter was providing informal care, the assistance required by the parents, who were experiencing physical and mental health issues and had specific needs regarding strangers and nursing homes, was substantial and ongoing. The Tribunal found that the applicants were willing and able to provide this necessary assistance. However, the Tribunal determined that the oldest child, being over 23 and financially dependent on the father at the time of the decision, did not meet the definition of a "member of the family unit" for the purposes of the visa.

Consequently, the Tribunal remitted the applications for the Other Family (Migrant) (Class BO) visas to the Minister for reconsideration, with a direction that the criteria for a Subclass 116 (Carer) visa were met by the first, second, and third named visa applicants. The Tribunal affirmed the decision not to grant the fourth named visa applicant the visa.