Panditharathna (Migration)

This decision concerns an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to be recognised as the carer of their mother, Dana Manel Senevirathne. The matter came before the Tribunal for review of a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 836.212 of the Migration Regulations 1994, which mandates that the applicant must claim to be the carer of an "Australian relative." The definition of an "Australian relative" for the purposes of this visa subclass requires the relative to be an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen at the time the visa application was lodged.

The Tribunal found that at the time the visa application was lodged on 14 November 2018, the person requiring care, Dana Manel Senevirathne, held a Bridging Visa B and was not a holder of a substantive permanent resident visa. Consequently, she did not meet the definition of an "Australian relative" as defined in the Regulations at that critical juncture. Although she was later granted a Subclass 804 Aged Parent visa, this did not alter the assessment of the applicant's eligibility at the time of the initial application. The applicant also confirmed departure from Australia on a bridging visa which subsequently ceased, leaving them without a visa to return.

Based on these findings, the Tribunal affirmed the decision not to grant the applicant the Subclass 836 visa, concluding that the applicant did not meet the prescribed criteria for the visa sought. No material was presented to support eligibility for any other visa subclasses.