SU (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to be recognised as a carer for their aunt, the sponsor, who is an Australian permanent resident suffering from renal failure requiring dialysis. The dispute centred on whether the applicant met the definition of a "carer" as prescribed by the Migration Regulations 1994. The decision was made by Senior Member Jennifer Cripps Watts of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied all the cumulative elements of the definition of a "carer" under regulation 1.15AA(1) of the Migration Regulations 1994. This involved determining if the applicant was a relative of the sponsor, if the sponsor had a medical condition causing significant impairment requiring ongoing direct assistance, and crucially, whether such assistance could not reasonably be provided by any other relatives who were Australian citizens, permanent residents, or eligible New Zealand citizens, or obtained from Australian welfare, hospital, nursing, or community services.

The Tribunal reasoned that while the applicant was a nephew and thus a "relative" of the sponsor, and the sponsor's medical condition was established, the critical element of the definition of "carer" that was not met was the inability to obtain assistance from other sources. The Tribunal found that other relatives of the sponsor, collectively, were capable of providing the necessary assistance. Consequently, the requirement that the assistance could not reasonably be provided by any other relative or obtained from community services was not satisfied.

Accordingly, the Tribunal affirmed the decision to refuse the visa application. The Tribunal also affirmed the refusal of visas for any secondary applicants, as they did not meet the secondary criteria for the visa.