Pham (Migration)

This matter concerned applications for Other Family (Residence) (Class BU) visas, specifically Subclass 836 (Carer) visas, made by Ms Thi Nhat Hanh Pham and her family. The primary applicant, Ms Pham, sought to be recognised as the carer of her mother, who was an Australian citizen. The dispute before the Tribunal centred on whether Ms Pham met the criteria to be considered a 'carer' under the Migration Regulations 1994.

The Tribunal was required to determine whether Ms Pham claimed to be the carer of an Australian relative, and whether she was, at the time of the decision, a carer of that Australian relative. Specifically, the Tribunal had to consider if the definition of 'carer' under regulation 1.15AA of the Regulations was satisfied, which involved assessing whether the Australian relative had a medical condition causing impairment, the rating of that impairment, and the ongoing need for direct assistance.

The Tribunal found that Ms Pham had indeed claimed to be the carer of her Australian citizen mother at the time of application, satisfying clause 836.212 of the Regulations. Furthermore, the Tribunal was satisfied that Ms Pham was a relative of the caree, meeting regulation 1.15AA(1)(a). However, the decision text indicates that while the relationship was established and the caree was an Australian relative, the assessment of the carer criteria, particularly concerning the medical condition, impairment rating, and the need for ongoing assistance as evidenced by a certificate, required further consideration.

Consequently, the Tribunal remitted the applications for reconsideration by the Minister, directing that certain criteria for the Subclass 836 (Carer) visa, specifically regulation 1.15AA (1) (a), (b), (ba), (c), and (d), were met. The remittal was for the Minister to consider the remaining criteria for the visa.