Mok (Migration) - [2025] ARTA 393

MOK (MIGRATION) [2025] ARTA 393 (25 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Mr Sam Ol Mok
Mrs Sam Ath Leang
Mr Bunlay Samoun
Miss Chamroeunsreypich Samoun
Miss Chamroeunboramey Samoun
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2115960

Tribunal:Senior Member M Bourke
Place:Melbourne
Date: 25 March 2025
Decision:The Tribunal sets aside the decisions under review and remits the applications for an Other Family (Residence) (Class BU) visa for reconsideration, with the order that the second named applicant meets the following criteria for a Subclass 836 (Carer) visa:
-cl.836.212 of Schedule 2 to the Regulations; and
The Tribunal sets aside the decisions under review and remits the applications for an Other Family (Residence) (Class BU ) visa for reconsideration with the order that the first named, third named, fourth named and fifth named applicants meet the following criteria for a Subclass 836 (Carer) visa:
- Cl.836.311(a) of Schedule 2 to the Regulations.

Statement made on 25 March 2025 at 1:51pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – close relative of person requiring care – first applicant brother-in-law not specified relative – first applicant and second applicant sister will provide care together – second applicant considered as primary applicant and first applicant and children as members of family unit – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12(2)(b), Schedule 2, cls 836.212, 836.311(a)
Administrative Review Tribunal Act 2024 (Cth), s 106(3)
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 October 2021 to refuse to grant the visa applicants Other Family (Residence) (Class BU) Subclass 836 visas under s.65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visa on 3 July 2019. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative), Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case the applicants are seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Migration Regulations 1994 (Cth). Relevantly to this review, the primary criteria to be met include cl.836.212 which requires that at the time of application the primary visa applicant claims to be the carer of an Australian relative.
The delegate refused to grant the visa on the basis that the visa applicant identified as the primary visa applicant was not a relative of the Australian relative with the medical condition.
The only parties to this proceeding are the review applicants and the Minister who is a nonparticipating party to the proceedings. The Tribunal has decided it can make a decision wholly in favour of the applicants. Further it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding. The Tribunal is therefore satisfied that the requirements of s.106(3) of the Administrated Review Tribunal Act 2024 apply, and for these reasons the Tribunal has made a decision in this review without proceeding to a hearing.
The following are the written reasons the Tribunal has concluded that the decisions under review is set aside and the matters should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Primary criteria
The issue in the present case is whether the primary visa applicant meets the requirements of cl.836.212. Clause 836.212 requires the visa applicant claims to be the carer of an Australian relative. In this case the Australian relative and the person with the medical condition requiring care is Ravy Leang, also known as Ravy Leang-Slattery, born in 1982.
Based on the information contained in the Department’s decision record dated 21 October 2021, a copy of which was provided to the Tribunal by the applicants, the Tribunal is satisfied that the person with the medical condition requiring care, Ravy Leang, is an Australian permanent resident.
The definition of close relative as defined in reg 1.03 of the Regulations, includes the spouse or de facto partner of the person, a child, parent, brother or sister of the person or a stepchild or stepsiblings of the person. The definition of relative as defined in reg. 1.03 in relation to a person for the purposes of a carer visa includes a close relative, or a grandparent, grandchild, aunt, uncle, niece or nephew or a step relative in those categories.
Schedule 1 requires that a valid application for a carer visa must be made at the place and in the manner specified by the Minister in a legislative instrument made for this item, the visa applicant must be in Australia and not in immigration clearance, the application made by a person claiming to be a member of the family unit of the person who is an applicant for an Other Family (Residence) (Class BU) visa may be made at the same time and place as, and combined with, the application by that person, and an application by a person claiming to be a carer must be accompanied by satisfactory evidence that the relevant medical assessment has been sought.
The applications for the Other Family (Residence) (Class BU) visa were made by the five visa applicants in a combined application with a combined sponsorship. The applications for the visa were accompanied by satisfactory evidence that the relevant medical assessment had been sought including a Carer Visa Assessment Certificate in relation to the Australian relative with the medical condition, Ravy Leang, dated 5 June 2018.
The information provided to the Department, indicates that both the first and second named visa applicants will care for the person needing care, and assist her with her medical condition and in caring for her young twins. The Tribunal’s assessment of the requirements in Schedule 1, is that either the first named or second named visa applicant, if it is proposed that they would be the carer for the person with the medical condition, could be nominated as the primary visa applicant.
The third named, fourth named and fifth named visa applicants were all identified as the children of the first named and second named visa applicants. In the documents provided, the third named, fourth named and fifth named visa applicants were not identified as potential carers for the Australian relative with the medical condition. These visa applicants are identified as school-aged children.
The information provided to the Department is that the first named visa applicant arrived in Australia before the second named, third named, fourth named and fifth named visa applicants.
Ravy Leang’s husband, Wayne Slattery, provided several documents to the Department. The Tribunal has inserted its own italics in the following paragraphs. In a statutory declaration dated 19 June 2019 Wayne Slattery lists his own disabilities, Ravy Leang’s disabilities and her need for assistance. He declares that he and Ravy Leang believe that the first named visa applicant and his wife Sam Ath Leang, have the experience and attributes that they need, to act as carers, as they are native Khmers, understand the cultural and social mores for Cambodians, and are devout Buddhists and understand the home ceremonies. Wayne Slattery declares the second named visa applicant has previously acted as Ravy Leang’s carer and also the carer for her parents. Wayne Slattery declares that they have the ability to drive (the second named visa applicant would need to obtain a licence) and both have cooking abilities, farming abilities to grow vegetables, and are both healthy.
In a statutory declaration dated 15 November 2019 he states [the first named visa applicant] “and his wife will continue to be able to support Ravy in her daily living activities - my age and disability prevent me from doing this for her”.
In a submission to the Department dated 24 August 2020, Wayne Slattery makes a request for the second named visa applicant to be allowed to earn a small income through part-time work, while “still assisting/caring for” his wife Ravy. Wayne Slattery made a similar request in relation to the first named visa applicant.
Based on the birth certificates of the second named visa applicant, the family record book and the identity documents provided, the Tribunal is satisfied that the second named visa applicant, Sam Ath Leang, is the sister of Ravy Leang, the person with the medical condition and requiring care.
The Tribunal is satisfied that the information provided in support of the applications for the visa clearly state that both the first named and the second named visa applicants will be providing the care for the person with the medical condition, Ravy Leang. The Tribunal is satisfied that the role of the first named applicant and the second named applicant are interchangeable, as being identified as the primary visa applicant.
The Tribunal has considered all the information before it and is satisfied that the second named applicant can appropriately be considered the primary visa applicant in this review. The Tribunal considers these are unique circumstances where both the persons claim to be the carer, but only one of the persons meets the definition of relative. In these circumstances, the Tribunal considers that it is appropriate and fair to interchange the assessment of which of the two persons claiming to be carer is in the role of primary visa applicant. The Tribunal is satisfied that this would not render the application invalid for the purposes of the requirements set out in Schedule 1. The Tribunal has therefore considered the second named applicant as the primary visa applicant, and considered the first named applicant as a secondary visa applicant.
If the second named visa applicant is considered as the primary visa applicant, the Tribunal is satisfied that the second named visa applicant meets the requirements that she claims to be the carer of the person with the medical condition. Further, the second named visa applicant meets the requirements that she is a relative, within the meaning of reg. 1.03, namely the sister, of the person with the medical condition, who is an Australian permanent resident. Accordingly the Tribunal is satisfied that the second named visa applicant claims to be the carer of an Australian relative at the time of application.
For these reasons the Tribunal is satisfied that the second named visa applicant meets the requirements of cl.836.212 at the time of application.
Secondary criteria
Cl.836.311(a) requires that the visa applicant is a member of the family unit of a person who has applied for an Other Family (Residence) (Class BU) visa.
Based on the combined application and sponsorship forms the Tribunal is satisfied the five applicants made a combined application for the Subclass 836 Carer visa. The Tribunal is satisfied that the first named, third named, fourth named and fifth named applicants made an application for the visa with the second named visa applicant.
The Tribunal is satisfied that the second named applicant, who is considered by the tribunal to be the primary visa applicant, has applied for an Other Family (Residence) (Class BU) visa. Based on the family record book recording the relationship, the Tribunal is satisfied that the first named and second named applicants are married. The Tribunal is satisfied that the first named applicant is the spouse of the primary visa applicant and is a member of the family unit of the primary visa applicant within the meaning of reg. 1.12(2)(a).
Based on the birth certificates of the third named, fourth named and fifth named applicants and the family record book, the Tribunal is satisfied that the third named, fourth named and fifth named applicants are the biological children of the first named and second named applicants, and are all aged under 18. The Tribunal is satisfied that the third named, fourth named and fifth named applicants are members of the family unit of the second named applicant within the meaning of reg.1.12(2)(b).
For these reasons the Tribunal is satisfied that the first named, third named, fourth named and fifth named applicants are members of the family unit of a person who has applied for a Subclass 836 Carer visa, and therefore meet the requirements of cl.836.311(a).
Given the findings above, the appropriate courses to set aside the decisions under review and remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.
DECISION
The Tribunal sets aside the decisions under review and remits the applications for an Other Family (Residence) (Class BU) visa for reconsideration with the order that the second named applicant meets the following criteria for a Subclass 836 (Carer) visa:
- cl.836.212 of Schedule 2 to the Regulations; and
The Tribunal sets aside the decisions under review and remits the applications for an Other Family (Residence) (Class BU) visa for reconsideration, with the order that the first named, third named, fourth named and fifth named applicants meet the following criteria for a Subclass 836 (Carer) visa:
-cl.836.311(a) of Schedule 2 to the Regulations.
Date(s) of hearing: N/A
Representative for the Applicant: Mr Wayne Leslie Slattery