Omara (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by the applicant against a decision not to grant them an Other Family (Residence) (Class BU) visa, specifically Subclass 836 (Carer). The dispute centred on whether the applicant met the criteria to be considered a "carer" under the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant satisfied regulation 1.15AA(1)(e) of the Migration Regulations. This regulation requires that the necessary assistance cannot reasonably be provided by any other relative of the Australian resident who is an Australian citizen, permanent resident, or eligible New Zealand citizen, nor obtained from Australian welfare, hospital, nursing, or community services. The Tribunal also considered whether the applicant was willing and able to provide the required assistance.

The Tribunal noted that the applicant had failed to provide evidence requested by the original delegate, including details about other adult relatives residing in Australia and why they could not provide the necessary assistance. The applicant's own application indicated they had ten brothers and sisters in Australia, nine of whom were Australian citizens, permanent residents, or eligible New Zealand citizens, aged between 43 and 58. In the absence of any evidence to the contrary, and given the applicant's failure to make submissions despite the lengthy review period, the Tribunal was not satisfied that the assistance could not reasonably be provided by these other relatives. Consequently, the Tribunal found that the applicant did not meet the criteria under regulation 1.15AA(1)(e)(i).

The Tribunal affirmed the decision not to grant the applicants the Other Family (Residence) (Class BU) visas, finding that the primary applicant did not satisfy the essential criteria for a carer visa. The Tribunal also noted that there was no evidence that the secondary applicant met the primary criteria for the visa.