Nguyen (Migration)

The Administrative Appeals Tribunal considered the application of Ms Nguyen for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant's claim was based on her alleged role in caring for her sister, who in turn was caring for their mother, Ms Thi Noa Nguyen. However, the central issue before the Tribunal was that the Australian relative requiring care, Ms Thi Noa Nguyen, had passed away prior to the decision being made.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 836 visa, particularly the requirement under clause 836.221 that the applicant be a "carer" of the Australian relative at the time of the decision. The Tribunal also considered whether the applicant met the criteria for a Subclass 838 (Aged Dependent Relative) visa and a Subclass 835 (Remaining Relative) visa.

The Tribunal reasoned that the definition of "carer" under regulation 1.15AA of the Migration Regulations 1994 necessitates that the person requiring care be alive at the time of the decision. As the applicant's mother had deceased, the applicant could not, at the time of the decision, be a carer of her late mother, nor could she be providing assistance to her sister in caring for their mother. Consequently, the applicant failed to satisfy clause 836.221. Regarding the other visa subclasses, the Tribunal found the applicant was not old enough for the Aged Dependent Relative visa and had near relatives residing outside Australia, thus not meeting the criteria for a Remaining Relative visa. The Tribunal also considered the applicant's circumstances in relation to Ministerial intervention guidelines but determined not to refer the matter to the Minister.

The Tribunal affirmed the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.