Lukic (Migration)

This matter concerned an application for a Class BU Subclass 836 (Other Family) Carer visa by a citizen of Serbia, who arrived in Australia in March 2017. The applicant sought to provide care for her Australian citizen mother, the sponsor, who was born in 1957. The sponsor had multiple physical and mental health conditions, including muscular dystrophy, severe back and hip pain, PTSD, major depressive disorder, and anxiety disorder, resulting in a 70% impairment rating. The applicant’s father, the sponsor’s husband, and her adult son, who were relatives in Australia, were considered unable to provide the necessary care due to the husband's age and health, and the son's full-time employment and family commitments. The applicant also submitted statutory declarations indicating her willingness and ability to provide care, and that her mother feared strangers and institutionalisation. The Tribunal was required to determine whether the criteria for the visa were met, particularly concerning the inability of other relatives or service providers to offer the required assistance.

The Tribunal considered the evidence regarding the sponsor's medical conditions and the assessment of her impairment rating. It also examined the reasons why the sponsor's husband and son were unable to provide the necessary care, noting the husband's own health issues and the son's work and family responsibilities. Furthermore, the Tribunal took into account the sponsor's stated fear of strangers and her family's desire to avoid institutionalisation, which contributed to the need for the applicant's direct care. The legal principles applied centred on the requirements of regulation 1.15AA of the Migration Regulations 1994, which outlines the criteria for a carer visa, including the need for a medical condition causing significant impairment, a continuing need for direct assistance, and that such assistance cannot reasonably be provided by other relatives or obtained from welfare services.

The Tribunal concluded that the matter should be remitted for reconsideration by the Minister. The direction was that the criteria for a Subclass 836 (Carer) visa, specifically clause 836.221 of Schedule 2 to the Regulations, were met. This indicates that while the applicant's eligibility as a carer was established, further assessment of other visa criteria was necessary.