Luu (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought review of a decision concerning the sponsorship requirements for this visa subclass. The core of the dispute revolved around whether the applicant met the criteria for being a "carer" under the Migration Regulations 1994, particularly in relation to the medical condition of the person requiring care and the role of the sponsor.

The Tribunal was required to determine whether the applicant satisfied the requirements of clause 836.213 of Schedule 2 to the Migration Regulations 1994. This involved assessing whether the applicant was a relative of an Australian resident, whether a person (either the resident or a member of their family unit) had a medical condition causing significant impairment, and whether the applicant could provide the necessary ongoing assistance that could not be obtained from other sources. A key question was whether the person with the medical condition was necessarily the sponsor, or if the sponsor could be a different Australian resident relative.

The Tribunal reasoned that the definition of a "carer" under regulation 1.15AA of the Migration Regulations 1994 did not mandate that the person with the medical condition must be the sponsor. Instead, it allowed for the person with the medical condition to be a member of the family unit of the resident, and for the resident to have a permanent or long-term need for assistance if the person with the medical condition was not the resident. The Tribunal concluded that the decision under review had not correctly applied these provisions, particularly in relation to the sponsorship requirements. Consequently, the Tribunal remitted the application for reconsideration.