Melhem (Migration)

This matter concerned an appeal by Mr Melhem against the decision of the Minister to refuse him an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The core of the dispute was whether Mr Melhem qualified as a 'carer' under the Migration Regulations 1994, as his application was based on providing care to his Australian citizen sister. The decision was made by Jennifer Cripps Watts.

The legal issues before the Tribunal were whether the applicant met the requirements of regulation 1.15AA(1)(e)(i) and (ii) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the assistance Mr Melhem proposed to provide could not reasonably be provided by any other relative of his sister who was an Australian citizen or permanent resident, and if the assistance could not reasonably be obtained from welfare, hospital, nursing, or community services in Australia.

The Tribunal affirmed the decision to refuse the visa. It reasoned that the applicant had not demonstrated that other relatives, including his sister's son who had previously provided care and received government payments, were unable to provide the necessary assistance. Furthermore, the Tribunal found that the applicant had not established that the required care could not be obtained from Australian welfare, hospital, nursing, or community services. The Tribunal noted that the sponsor had not accessed hospital or nursing services and that the collective family contribution to care, particularly during COVID-19 restrictions, did not negate the need to assess the availability of external services. The Tribunal concluded that the applicant did not meet the prescribed criteria for a Subclass 836 visa.