PRASAD (Migration)

The Administrative Appeals Tribunal considered the case of the applicants, who sought a Change in Circumstance (Residence) (Class AG) visa, specifically Subclass 806 (Family). The central dispute revolved around whether the applicants qualified as "special need relatives" as defined by the Migration Regulations.

The primary legal issue before the Tribunal was to determine if the applicants met the definition of a "special need relative" at the time of their visa application, as stipulated by clause 806.213 of Schedule 2 to the Migration Regulations. This definition requires the relative to be willing and able to provide substantial and continuing assistance to a settled Australian citizen, permanent resident, or eligible New Zealand citizen, where that citizen or resident has a permanent or long-term need for assistance due to specific circumstances, and such assistance cannot reasonably be obtained from other sources.

The Tribunal reasoned that the secondary visa applicant, Mr. Prasad, was nominated by his sister-in-law, Mrs. Rohini Barma Singh. However, Mr. Prasad was not a "relative" of Mrs. Singh within the meaning of the regulations. Consequently, he did not meet the definition of a "special need relative." The Tribunal also addressed the applicants' contention that they were special need relatives for their Australian citizen son, Mr. Krishneel Prasad, and his spouse, Ms. Shamita Chandra, who allegedly had a permanent long-term need for assistance due to a medical condition. The Tribunal clarified that clause 806.221 requires applicants to continue to satisfy the time-of-application criteria at the time of the decision, including the requirement of nomination. The Tribunal found that the nomination by Mrs. Singh was not valid for Mr. Prasad, and while sympathetic to the applicants' long residence in Australia and potential difficulties returning to Fiji, it affirmed the decision not to grant the visas.