McLannen (Migration)

This matter concerned an application for a Subclass 836 (Carer) visa. The applicant sought to establish that they were the carer of their Australian resident spouse. The Tribunal was required to determine whether the applicant met the criteria for being a carer as defined by the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 836.221 of Schedule 2 to the Regulations, which requires the applicant to be a carer of an Australian relative at the time of the decision. This involved assessing whether the applicant was a "relative" of the Australian resident and whether a valid certificate, meeting the requirements of regulation 1.15AA(2), was provided. The certificate needed to attest to the Australian relative's medical condition, the resulting impairments, the need for ongoing assistance, and the inability to obtain such assistance from other sources or services.

The Tribunal found that the applicant was a "relative" as they were the spouse of the Australian resident, evidenced by a marriage certificate. Furthermore, the Tribunal considered a Carer Visa Assessment Certificate (CVAC) dated 2 September 2020, issued by Bupa Medical Visa Services. The Tribunal noted that this certificate was signed by the medical adviser who conducted the assessment and stated that the Australian resident had a medical condition causing impairments affecting their daily life, requiring direct assistance for at least two years. The Tribunal concluded that this certificate met the requirements of regulation 1.15AA(2).

Given these findings, the Tribunal determined that the criteria for being a carer under clause 836.221 were met. Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, with a direction that the specified criteria for a Subclass 836 visa had been satisfied.