Khan (Migration)

The Administrative Appeals Tribunal considered the case of Mr Khan, who sought review of a decision not to grant him an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant claimed to be a carer for his niece, Miss Ayesha Saima Ali, who has Down Syndrome and resides in Australia with her parents, the applicant's sister and brother-in-law.

The Tribunal was required to determine whether the applicant met the criteria for a carer visa, particularly under Regulation 1.15AA of the Migration Regulations 1994. This involved assessing whether Miss Ali had a permanent or long-term need for direct assistance with daily life due to her medical condition, and crucially, whether her Australian resident mother, Mrs Saira Ali, had a permanent or long-term need for assistance in providing that care, and if such assistance could not reasonably be provided by other relatives or obtained from community services.

The Tribunal found that while Miss Ali had a Carer Visa Assessment Certificate with an impairment rating of 30, the applicant's claim to be the primary carer was unconvincing. The applicant resided with Miss Ali and her parents, and while he assisted with school runs and shopping, Miss Ali's mother was responsible for her personal care, such as showering and toileting. The Tribunal concluded that the evidence did not establish that Mrs Saira Ali had a permanent or long-term need for assistance in providing care, nor that such assistance could not reasonably be provided by her or obtained from other sources. Consequently, the Tribunal affirmed the delegate's decision not to grant the visa.