Khonkrathok (Migration)

The Administrative Appeals Tribunal considered an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to be recognised as the carer of her sister, Ms Yupaporn Morgan, who is an Australian citizen. The core of the dispute revolved around whether the applicant met the criteria to be considered a "carer" under the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant claimed to be the carer of an Australian relative, and whether she was, at the time of the decision, a carer of that relative. This involved assessing whether the applicant was a relative of the Australian resident, and crucially, whether a valid Carer Visa Assessment Certificate met specific requirements. These requirements included the existence of a medical condition causing impairment, a specified impairment rating, and a continuing need for direct assistance for at least two years. Furthermore, the Tribunal had to consider whether the impairment rating met or exceeded the specified threshold in a legislative instrument, and whether the required assistance could not reasonably be provided by other relatives or obtained from community services.

The Tribunal found that the applicant had indeed claimed to be the carer of her Australian citizen sister, satisfying clause 836.212 of the Regulations. It also concluded that the applicant was a relative of the Australian resident, meeting the requirements of regulation 1.15AA(1)(a). A Carer Visa Assessment Certificate dated 2 August 2018, issued by Bupa Medical Visa Services, was considered. The Tribunal was satisfied that this certificate indicated the presence of a medical condition causing impairment, a specified impairment rating, and a continuing need for direct assistance. However, the Tribunal noted that the impairment rating specified in the certificate exceeded the rating specified in the relevant legislative instrument, and that the assistance could not reasonably be provided by another relative.

Given these findings, the Tribunal remitted the applications for the visas to the Minister for reconsideration. The remittal was specifically directed to consider the remaining criteria for a Subclass 836 visa, with the Tribunal noting that it was open for the Minister to reconsider the circumstances of the second named applicant.