KAILAHI (Migration)

This matter concerned an appeal to the Tribunal regarding the refusal of an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer) visa. The applicants, a Tongan national and his spouse, sought to migrate to Australia to care for the applicant's grandmother, Mrs Latu Kailahi, who was an Australian citizen residing in New South Wales. The sponsor for the visa application was Ms Nandi Kailahi, who identified herself as Mrs Kailahi's daughter.

The primary legal issues before the Tribunal were whether the sponsorship requirements for the Carer visa were met, specifically concerning the familial relationship between the sponsor and the care recipient, and whether the care recipient was considered a "member of the family unit" of the sponsor for the purposes of the regulations. The Tribunal also considered the sponsor's ability to provide care and the availability of alternative support.

The Tribunal accepted that the sponsor, Ms Nandi Kailahi, was the biological child of Mrs Lutu Kailahi, and that the applicant was the biological child of Mrs Lutu Kailahi's deceased son. However, the Tribunal found that the sponsorship requirements were not met because Mrs Lutu Kailahi resided at a different address to Ms Nandi Kailahi, meaning she was not "usually resident" in Ms Kailahi's household and therefore did not meet the definition of a "member of the family unit" as prescribed by Regulation 1.12(e). The Tribunal noted that Regulation 1.15AA(1)(b)(i) requires the person with the medical condition to be either the resident or a member of the family unit of the resident, and in this context, the resident was the sponsor.

Despite affirming the decision not to grant the visa, the Tribunal, having considered the ministerial guidelines relating to the Minister's discretionary power under section 351 of the Migration Act 1958 (Cth), referred the case to the Department to be brought to the Minister's attention.