Nikolic (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse to grant Mr Nikola Nikolic, the review applicant, an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer). The sponsor for the visa application was Mr Krsta Nikolic, the review applicant's father, who is an Australian citizen. The delegate's refusal was based on the applicant's failure to satisfy Regulation 1.15AA(1)(e) of the Migration Regulations 1994 (Cth).

The primary legal issue before the Tribunal was whether the assistance Mr Krsta Nikolic required due to his medical condition could reasonably be provided by any other relative who is an Australian citizen, permanent resident, or eligible New Zealand citizen, or obtained from welfare, hospital, nursing, or community services in Australia. This criterion is a mandatory requirement for the grant of a Subclass 836 visa.

The Tribunal found that the applicant had claimed to be the carer of his father at the time of application and was a carer at the time of the decision, satisfying clauses 836.212 and 836.221 of Schedule 2 to the Regulations. However, the Tribunal concluded that the delegate had not adequately considered the limitations and availability of alternative care options in Australia, including the potential impact of cultural and language barriers, and the specific limitations of health and aged care services. Consequently, the Tribunal remitted the application for reconsideration by the Minister.