Soluk (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant, Ms Rosalina Soluk, sought to be recognised as a carer for Mr Ivan Jurkijevic, an Australian citizen who suffers from a long-term and permanent neurological disability. The decision under review was made by the Migration Review Tribunal.

The primary legal issues before the Tribunal were whether the applicant qualified as a "carer" under the Migration Regulations 1994 and, consequently, whether she met the criteria for a Subclass 836 visa. This involved determining if Ms Soluk was a "relative" of Mr Jurkijevic as defined by the Regulations, and whether the necessary medical assessment certificate had been obtained and provided with the application. The Tribunal also considered whether the circumstances warranted a referral to the Minister for personal reconsideration under section 351 of the Migration Act 1958.

The Tribunal reasoned that Ms Soluk was not a "relative" of Mr Jurkijevic within the meaning of regulation 1.03 of the Migration Regulations. As a result, she did not satisfy the requirement under clause 836.212 of the Regulations that the applicant claim to be the carer of an Australian relative. Furthermore, the Tribunal noted that no medical assessment certificate had been obtained or provided with the application, which is a mandatory requirement for a carer visa. Despite acknowledging the compassionate circumstances of the case, including the applicant's willingness and ability to provide assistance and the inability of other relatives or services to do so, the Tribunal concluded that the applicant did not meet the prescribed criteria for the visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 836 visa. The request for referral to the Minister for personal reconsideration was not granted, as the applicant failed to meet the fundamental eligibility requirements for the visa.