Michael (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to demonstrate that she met the definition of a carer under the Migration Regulations 1994. The Tribunal was required to determine whether the applicant satisfied the criteria for the visa at the time of the decision.

The primary legal issue before the Tribunal was whether the applicant met the definition of a "carer" as defined in regulation 1.15AA of the Migration Regulations 1994. This involved assessing whether the applicant could rely on her initial claim of being a carer for the sponsor's husband, who had since passed away, and whether she met the criteria based on her subsequent claim of being a carer for the sponsor. Crucially, the Tribunal had to consider the "time of decision" criterion and the requirements for a valid Carer Visa Assessment Certificate, including the specified impairment rating for the person requiring care.

The Tribunal reasoned that as the sponsor's husband had died, the applicant could not rely on her initial claim to satisfy the "time of decision" criterion. The Tribunal then examined the applicant's claim to be a carer for her sponsor, the sponsor's sister. Despite multiple Carer Visa Assessment Certificates being issued, all three found that the sponsor did not meet the required impairment rating of 30, with the most recent certificate indicating an impairment rating of 15. These certificates also found that the sponsor did not have, and would not continue to have for at least two years, a need for direct assistance with the practical aspects of daily life due to her medical condition. Consequently, the Tribunal affirmed the decision not to grant the visa.