Radic (Migration)

This matter concerned an appeal by an applicant for an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer visa), against a delegate's decision to refuse the visa. The primary issue was whether the applicant met the criteria for being a carer of the sponsor, particularly in circumstances where the sponsor had since passed away. The Tribunal was required to determine if the applicant satisfied the requirements of clause 836.221 of the Migration Regulations 1994, which mandates that the applicant be a carer of the Australian resident at the time of the decision.

The Tribunal considered the definition of 'carer' as set out in regulation 1.15AA of the Migration Regulations 1994. This definition requires, among other things, that the sponsor has a medical condition causing impairment and a continuing need for direct assistance with the practical aspects of daily life, and that such assistance cannot reasonably be obtained from other sources. The Tribunal noted that as the sponsor was deceased at the time of the decision, the applicant could not meet the requirement of providing ongoing care, nor could the sponsor be issued with the necessary certificate confirming a continuing need for care for at least two years. The Tribunal also addressed the applicant's submissions regarding care provided after the sponsor's death, such as arranging a headstone and administering property, finding these did not constitute the type of direct assistance with daily life contemplated by the regulations.

Ultimately, the Tribunal affirmed the delegate's decision to refuse the visa. The applicant failed to meet the essential criterion of being a carer of the sponsor at the time of the decision due to the sponsor's death. The Tribunal found no material that would permit a finding that the applicant met the prescribed criteria for the Subclass 836 visa or any other visa subclass.