Qayyumi (Migration)
[2025] ARTA 1198
•8 July 2025
Qayyumi (Migration) [2025] ARTA 1198 (8 July 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Sayed Waleed Qayyumi
Visa Applicants: Ms Uraiza Yasir
Dr Javed Yasir
Miss Abeeha Fatima
Miss Ayesha Haadia
Mr Muhammad Bin YasirRespondent: Minister for Immigration and Citizenship
Tribunal Number: 2312126
Tribunal:General Member J Owen
Place:Sydney
Date: 8 July 2025
Decision:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (class BO) visas.
I, General Member J Owen certify that this is the
Tribunal's statement of decision and reasons
Statement made on 8 July 2025 at 4.38pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – sponsored by brother to care for mother – relationship and mother’s health assessment – parents not included in definition of family unit – sponsor and person receiving care intended to be same person – members of family unit husband and children – not eligible for other subclasses – sponsor’s difficulties in providing care – referred for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulation 1994 (Cth), rr 1.12, 1.15AA(1)(b)(i), 1.20, Schedule 2, cls 116.211, 116.212, 116.221, 116.321
CASES
Nguyen v MICMSMA [2020] FCA 1732
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 July 2023 to refuse to grant the visa applicant a Other Family (Migrant) (Class BO) Subclass 116 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The first-named applicant (the visa applicant) is a female national of Pakistan, born 8 June 1983. The visa applicant applied for the visa on 2 February 2022. The application includes her family. The delegate refused to grant the visa on the basis that cl 116.221 was not met because the delegate was not satisfied the visa applicant was a carer of an Australian relative. The sponsor (the review applicant) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 26 June 2025 to give evidence and present arguments. The review applicant is the brother of the visa applicant.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
Relevant Law
At the time the application was made, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations.
Clause 116.221 requires that at the time of decision, the visa applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in reg. 1.15AA of the Regulations. Reg. 1.15AA(1)(b) relevantly requires that a Carer certificate states that the Australian relative (resident) or a member of the family unit has a medical condition.
The term ‘member of the family unit’ is defined in reg. 1.12 and includes a spouse of de facto partner of the family head, a child or step-child and a dependent child of a child.
Is the applicant a carer of an Australian relative?
The Tribunal notes that the delegate did not determine reg. 1.15AA(1)(a), that requires the visa applicant must be a ‘relative’ of the Australian relative ( or ‘resident’). The delegate noted the visa applicant had not provided supportive documents to demonstrate she was the sister of the resident.
The visa applicant provided the Tribunal with copies of her birth certificate, her brother the review applicant’s birth certificate, and their mother's birth certificate. The visa applicant furthermore stated that all parties were prepared to undertake DNA testing to prove the biological relationship if the documentation provided was not sufficient. The Tribunal is satisfied that these documents are genuine and valid and accepts them as reliable evidence of the biological relationship between the visa applicant, the review applicant and their mother. The Tribunal is satisfied the visa applicant meets reg. 1.15AA(1)(a).
The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant was sponsored by her brother, Mr Sayed Waleed Qayyumi, who is an Australian citizen. The review applicant at the Tribunal’s hearing confirmed that the person with the condition, and the person in relation to whom the Carer certificate was issued, is their mother Ms Maryam Ahmed Qaiyumi. The delegate noted that Ms Maryam Ahmed Qaiyumi was not a spouse, de facto or a child of the family head, and was not a member of the family unit of the sponsor and review applicant, Mr Sayed Waleed Qayyumi.
The review applicant discussed the needs of Ms Maryam Ahmed Qaiyumi at the Tribunal’s hearing. Ms Maryam Ahmed Qaiyumi is currently 60 years of age and residing with the review applicant and his family. Her CVAC has an impairment rating of 50. The review applicant both at the hearing and in post-hearing written submissions discussed a wide range of chronic medical conditions his mother was experiencing including a slipped disc (lumbar spondylosis), hypertension, depression, fatty liver, osteopenia, prediabetes, hypercholesterolaemia, gout (hyperuricemia), and severe leg and back pain.
The review applicant discussed the considerable pressure the caring responsibilities were placing on himself and his wife, who are also raising two young children. The review applicant states his mother requires a full-time carer and the visa applicant, who has visited Australia previously, wishes to provide full-time care to their mother. The review applicant stated that as sponsor he would be covering all the costs for the visa applicant.
The review applicant in post-hearing submissions wrote to the Tribunal:
Our mother’s dignity and quality of life are at stake. She needs someone she trusts, her daughter, who has cared for her before and is willing and able to do so full-time. My sister’s presence would allow Ms Maryam Ahmed Qaiyumi to be cared for with compassion and consistency, while allowing our Australian household to continue functioning. Without this support, we face a very real risk of being unable to safely care for her and uphold our own family responsibilities.
The review applicant has made a range of submissions, both oral and written, as to why he believed the delegate was incorrect in their conclusions, and why the visa applicant met the criteria for the grant of the visa.
In relation to the delegate’s finding that his mother, Ms Maryam Ahmed Qaiyumi, is not a member of his family unit, the review applicant conceded that reg. 1.12 did not define parents as members of the family unit. He claims however that this definition was written for economic dependency purposes and was not to exclude genuine carers from supporting aged parents in Australia. The review applicant claims the carer visa framework is designed to allow an Australian resident to sponsor a close relative – such as a sibling as in his own case – to come and care for another family member that has a medical condition. The review applicant claims that to reject the application based on a narrow reading of reg. 1.12 undermines the purpose of the Carer visa.
In support of his assertions, the review applicant has raised the case Nguyen v MICMSMA [2020] FCA 1732. In this case pertaining to an onshore subclass 836 visa, the Court found that the sponsor and the Australian relative requiring care did not need to be the same person, and provided the sponsor was an Australian relative (or their partner), over 18 years of age and is settled and usually resident in Australia, they would meet the relevant criteria for the visa.
The Tribunal does not accept the review applicant’s claims.
The definition of ‘member of the family unit’ as per reg. 1.12 is clear, precise and specific in its wording. It is not the role of the Tribunal – and obviously well beyond its powers and remit – to reinterpret the regulation. The review applicant’s mother, Ms Maryam Ahmed Qaiyumi, is neither a spouse, de facto partner, child or stepchild of the review applicant who is the sponsor of the visa.
In relation to the decision Nguyen v MICMSMA [2020] FCA 1732 (which relates to an onshore subclass 836 visa, not an offshore subclass 116 visa which has slightly different provisions), the Tribunal does not accept it is supportive of the review applicant’s claims to meet the relevant criteria for the grant of the visa.
The Tribunal notes in a subclass 116 visa, the visa applicant is required to meet the requirements of both cl 116.211 and cl 116.212 at the time of application:
116.21--Criteria to be satisfied at time of application
116.211
(1) The applicant claims to be a carer of an Australian relative of the applicant.
(2) In this clause, Australian relative , in relation to an applicant, means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
116.212
The applicant is sponsored:
(a) by the Australian relative mentioned in clause 116.211 if that relative has turned 18; or
(b) by the spouse or de facto partner of the Australian relative if:
(i) the spouse or de facto partner cohabits with the relative; and
(ii) the spouse or de facto partner is an Australian citizen or an Australian permanent resident or an eligible New Zealand citizen; and
(iii) the spouse or de facto partner has turned 18.
116.22--Criteria to be satisfied at time of decision
116.221
The applicant is a carer of the Australian relative mentioned in clause 116.211.
In this case for the purposes of cl 116.211, the visa applicant claims to be a carer of her mother Ms Maryam Ahmed Qaiyumi, who the Tribunal accepts is an Australian citizen.
Cl 116.212 however clearly and unequivocally states that the visa applicant must be sponsored by the Australian relative mentioned in cl 116.211 (emphasis added) if that relative has turned 18, or by their spouse or de facto partner of the Australian relative.
Cl 116.212 therefore relevantly requires that the visa applicant must be sponsored by the Australian relative mentioned in cl 116.211. The Australian relative in this case mentioned in cl 116.211 is the visa applicant’s mother Ms Maryam Ahmed Qaiyumi. The visa applicant however was not sponsored by her mother, rather she was sponsored by her brother Mr Sayed Waleed Qayyumi who is the review applicant.
Therefore, the visa applicant does not meet the requirements of cl 116.211 and cl 116.212 at the time of application.
The review applicant has also made a submission that he is a valid sponsor of the visa applicant’s application under reg. 1.20. The review applicant points out that he is an Australian citizen, he is the brother of the visa applicant, and he is usually resident in Australia. The Tribunal accepts he is all of those. This does not however obviate the requirement that the visa applicant meets the specific requirements for a subclass 116 visa as outlined in the Regulations. As discussed by the Tribunal previously, cl 116.212 requires the visa applicant be sponsored by the (italics added) Australian relative mentioned in (italics added) cl 116.211. In a subclass 116 visa, this makes clear that the sponsor and the Australian relative (the person receiving the care) are intended to be the same person. In this case, they are not. The visa applicant claims to be the carer of her mother, yet she is sponsored by her brother. The Tribunal subsequently rejects this submission of the review applicant.
The review applicant has also claimed it was a “serious legal mistake” of the delegate to require his mother Ms Maryam Ahmed Qaiyumi to be a member of the family unit under reg. 1.12. The review applicant claims the member of the family unit requirement does not apply when the person requiring care – being his mother Ms Maryam Ahmed Qaiyumi – is the resident. The review applicant has highlighted reg. 1.15AA(1)(b)(i) that states “a person (being the resident or a member of the family unit of the resident) has a medical condition. The review applicant states this means the person with the medical condition can be the resident themselves, and there is no need for them to be a member of anyone else’s family unit.
The Tribunal has taken into account the review applicant’s submissions but finds he has misinterpreted the relevant regulations.
The Tribunal finds that the visa applicant was sponsored by her brother, the review applicant Mr Sayed Waleed Qayyumi. The Tribunal finds that the Australian relative (resident) is the visa applicant’s brother Mr Sayed Waleed Qayyumi . The Carer certificate that accompanied the visa applicant’s application however relates to Ms Maryam Ahmed Qaiyumi who is the mother of the visa applicant and the review applicant/sponsor.
As the person in need of care is not the resident, she must be a member of the family unit of the resident. Reg. 1.12 defines the term ‘member of the family unit’ and that definition does not include a parent. As Ms Maryam Ahmed Qaiyumi is the parent of the sponsor and review applicant Mr Sayed Waleed Qayyumi, she does not meet the definition of ‘member of the family unit’ of the resident.
The Tribunal subsequently is not satisfied that it is the Australian relative (resident) or a member of the family unit that has the relevant medical certificate to which the certificate relates. The Tribunal therefore is not satisfied the visa applicant meets the requirements of reg. 1.15AA(1)(b). The visa applicant is not a ‘carer’ as defined in reg. 1.15AA for the purpose of cl. 116.211 and cl 116.221. The Tribunal is not satisfied the visa applicant meets these provisions.
The Tribunal notes the review applicant made further submissions post-hearing pertaining to the biological relationship between himself, the visa applicant, and their mother. The Tribunal has accepted the veracity of the claimed biological relationship between the parties. Remarks were also made concerning the delegate disregarding the Carer Visa Assessment Certificate. The Tribunal has taken the claims into account but notes it has affirmed the delegate’s refusal of the application on the basis the visa applicant does not meet cl 116.211 and cl 116.221 for the reasons discussed previously in this decision record.
For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.
The evidence before the Tribunal is that the visa applicant was born on 8 June 1983. The Tribunal finds that the visa applicant is not entitled to the grant of Subclass 114 (Aged Dependent Relative) visa as the visa applicant is not old enough to be granted an age pension under the Social Security Act 1991. The visa applicant does not therefore meet the criterion for a Subclass 114 (Aged Dependent Relative) visa.
To be assessed as a remaining relative the visa applicant must have no near relatives living outside Australia. In oral evidence to the Tribunal, the review applicant confirmed that he and the visa applicant have siblings residing in Germany. The visa applicant’s application form declares her father resides in Germany, as does her brother and sister. The Tribunal is therefore not satisfied the visa applicant meets the criterion for a Subclass 115 (Remaining Relative) visa.
Secondary visa applicants
The application of the secondary visa applicants Dr Javed Yasir, Miss Abeeha Fatima, Miss Ayesha Haadia and Mr Muhammad Bin Yasir were refused by the delegate on the basis that the primary visa applicant’s visa had been refused. As the Tribunal has affirmed the delegate’s decision and found that the visa applicant does not meet the relevant criteria for the grant of the visa, the Tribunal affirms the decision to refuse the applications of the secondary visa applicants.
The secondary visa applicants Dr Javed Yasir, Miss Abeeha Fatima, Miss Ayesha Haadia and Mr Muhammad Bin Yasir do not meet cl 116.321 as they are not members of the family unit of a person who satisfies the primary criteria for the grant of the visa.
There is no evidence, and no claims before the Tribunal, that the secondary visa applicant meets the primary criteria for the grant of an Other Family (Migrant) (Class BO) visa.
Ministerial intervention
The review applicant discussed in some detail the challenges he, his wife and children are facing with providing care to his mother in their own home. The Tribunal notes the carer visa assessment certificate as well as the review applicant’s post-hearing correspondence that discusses the chronic medical conditions his mother is currently facing. The Tribunal accepts the review applicant, and his family have faced a challenging time in providing care and support. The Tribunal accepts the ongoing demands are impacting the family adversely. The Tribunal also has considerable sympathy for the review applicant who sponsored the visa applicant himself (rather than his mother undertaking the sponsorship) in entirely good faith. The Tribunal accepts the review applicant sponsored his sister, the visa applicant, on the basis that he would be the one providing the necessary and required support to the visa applicant.
The Tribunal notes the Minister has discretionary powers under s 351 of the Act to replace a decision of a merits review tribunal with a decision more favourable to that person if the Minister thinks it is in the public interest to do so.
The review applicant has outlined in correspondence to the Tribunal a number of strong compassionate circumstances that he submits would represent unique or exceptional circumstances that warrant the referral of this case to the Minister. The Tribunal is both sympathetic of the review applicant’s endeavours in this area. The Tribunal considers there are on the evidence compassionate circumstances that would arguably support Ministerial Intervention. The Tribunal has determined to refer this matter to the Minister on this basis.
DECISION
The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (class BO) visas.
Date(s) of hearing: 26 June 2025
Representative for the Applicant: N/A
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