Nolen (Migration)

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The applicant sought to migrate to Australia to care for their sister, who was an Australian permanent resident. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for being a 'carer' under the Migration Regulations 1994.

The Tribunal considered whether the applicant claimed to be a carer of an Australian relative, as required by clause 116.211 of the Regulations, and whether the applicant was indeed a carer at the time of the decision, as stipulated by clause 116.221. Central to these considerations was the interpretation of regulation 1.15AA, which defines a 'carer' and sets out the requirements for a supporting certificate. This included whether the certificate met the specified requirements regarding the medical condition of the person needing care, the resulting impairment rating, and the inability to obtain assistance from other relatives or Australian services.

The Tribunal found that the applicant satisfied the requirements of clauses 116.211 and 116.221. It was established that the applicant was a relative of the Australian permanent resident requiring care. Furthermore, the provided certificate met the requirements of regulation 1.15AA(2), indicating a medical condition causing impairment, a specified impairment rating, and a continuing need for direct assistance. The Tribunal also noted that the person requiring care was an Australian permanent resident and that assistance could not reasonably be provided by other relatives or obtained from Australian welfare, hospital, nursing, or community services.

Consequently, the Tribunal remitted the application for the Subclass 116 (Carer) visa for reconsideration by the Minister, with a direction that the criteria under clauses 116.211, 116.221, and 116.321 of Schedule 2 to the Regulations had been met.