Mati (Migration)

This matter concerned an application for Other Family (Residence) (Class BU) visas, Subclass 836 (Carer) visas, by three applicants who were citizens of Sweden. The applicants sought to migrate to Australia to allow the first applicant to care for her mother, Mrs Mary Polus Hirmiz Bebozi, an Australian permanent resident. A delegate of the Minister refused the visa applications, finding that the criterion that the required assistance could not reasonably be obtained from welfare, hospital, nursing or community services in Australia was not met. The applicants sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the first applicant met the definition of a 'carer' under regulation 1.15AA of the Migration Regulations 1994, specifically whether the assistance required by the sponsoring relative could not reasonably be provided by any other relative or obtained from Australian community services. This involved considering the nature of the sponsoring relative's medical conditions and the availability and suitability of existing community services to meet her complex needs, including those related to her cultural background, ethnicity, religion, and language.

The Tribunal reasoned that the delegate had erred in their assessment of the criterion regarding the inability to obtain assistance from community services. While the sponsoring relative expressed a personal preference for care from her daughter and noted difficulties in accessing 24-hour care from community services, the delegate had not adequately considered the evidence submitted by the applicants. This evidence included a My Aged Care support plan and a letter from a Victorian Arabic Social Services indicating limitations in their ability to provide the specific support required. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister.

The Tribunal remitted the applications for the Subclass 836 (Carer) visas for reconsideration. The Tribunal directed that the first applicant be found to meet the criteria under cl 836.221 of Schedule 2 to the Regulations, and the other named applicants be found to meet the criteria under cl 836.321 of Schedule 2 to the Regulations.