Nguyen (Migration)

This matter concerned an application for review of a decision to refuse an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to be recognised as a carer for an Australian resident relative. The Federal Circuit Court had remitted the matter for reconsideration.

The primary legal issues before the Tribunal were whether the applicant met the definition of a carer under the relevant regulations, which hinged on two key questions. Firstly, whether the Australian citizen relative (the sponsor) was usually resident in the household of the person in need of care (her mother) at the time of the visa application. If this was established, the second issue was whether the required assistance could not reasonably be provided by another eligible relative or obtained from Australian welfare, hospital, nursing, or community services.

The Tribunal considered the meaning of "usually resident," noting that it involves both physical residency and intention. Drawing on case law, the Tribunal affirmed that an individual's usual place of residence is determined by where they eat, sleep, and have their settled abode. While acknowledging that a person can be resident in multiple places and may not cease to be resident due to temporary absence, the ultimate test involves retaining a continuity of association with a place and an intention to return, with that place remaining their home. Despite evidence that the sponsor had been living with her mother since November 2014, after the initial delegate's decision, the Tribunal found that the sponsor was not usually resident in her mother's house at the time of the application in May 2014.

The Tribunal affirmed the decision under review, concluding that the applicant did not meet the criterion of the sponsor being usually resident in the household of the person in need of care at the time of the application.