Poculan (Migration)

The Administrative Appeals Tribunal considered an application for an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer). The applicant sought review of a delegate's decision to refuse the visa. The central dispute concerned whether the sponsorship requirements for the visa were met, specifically regarding the applicant's sister, Ms. Ooqueah Nikita Poculan Martz, who was the sponsor, and the applicant's mother, Ms. Riza Mason, who was the person requiring care.

The primary legal issue before the Tribunal was whether the applicant's sister, as the sponsor, satisfied the requirement of being "usually resident in the family's household" under regulation 1.12(1)(e)(ii) of the Migration Regulations 1994. This requirement was linked to clause 836.213 of Schedule 2 to the Regulations, which mandates sponsorship by an Australian relative. The delegate had found this requirement not met, as the sponsor lived separately from the care recipient.

The Tribunal reasoned that the delegate erred in applying regulation 1.12(1)(e)(ii) to the sponsor. Drawing on the Federal Court's decision in *Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs* [2020] FCA 1732, the Tribunal noted that clause 836.213 refers to "the Australian relative" as defined in clause 836.111, and this definition does not necessitate cohabitation with the care recipient. Furthermore, the Tribunal clarified that the definitions of "resident" in regulation 1.15AA and "family unit" in regulation 1.12 do not prescribe criteria for the sponsor of a carer applicant.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the criteria under clauses 836.212 and 836.213 of Schedule 2 to the Regulations were met.