Ma (Migration)

This matter concerned an appeal by Ms Ma against a decision regarding her application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The central dispute revolved around whether the sponsor, Ms Gao (an Australian permanent resident and Ms Ma's mother), required assistance that could not reasonably be provided by other Australian relatives or obtained from Australian welfare, hospital, nursing, or community services, and whether Ms Ma was willing and able to provide the necessary substantial and continuing care. The case was heard by Deputy J.L Redfern PSM P.

The primary legal issue before the court was to determine if the assistance Ms Gao required due to her medical conditions could not reasonably be provided by another Australian relative or obtained from Australian community services. This assessment was critical for satisfying the requirements of regulation 1.15AA(1) of the Migration Regulations. The court also considered, for completeness, all other relevant criteria under regulation 1.15AA(1).

The court found that Ms Ma met the requirements of sub-regulations 1.15AA(1)(a) and (ba) as she is the daughter of Ms Gao. The court examined a Carer Visa Assessment Certificate and a medical adviser's report dated 20 September 2016, which indicated Ms Gao had significant impairments requiring direct assistance for at least two years due to conditions including dementia, depression, and various physical ailments. However, the report identified individuals as Ms Gao's niece and nephew who occasionally assisted her, but Ms Ma and Ms Gao provided evidence that these individuals were not related to Ms Gao. Given the discrepancies and the critical nature of the assessment regarding the availability of alternative care, the court determined that the application should be remitted for reconsideration.

The Tribunal remitted the application for the Subclass 836 (Carer) visa to the Minister for reconsideration, with a direction that the criteria under clauses 836.212, 836.213, and 836.221 of Schedule 2 to the Regulations were met.