Sun (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer), by an applicant who claimed to be the carer of her infant son, Master Eli Sun. The applicant’s son was an Australian citizen. The applicant’s spouse, the father of Master Eli Sun, sponsored the visa application. The decision under review was affirmed by the Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a Carer visa, specifically whether she was the carer of an Australian relative as defined by the *Migration Regulations 1994* (Cth) and whether her son had a medical condition causing a significant impairment that necessitated her ongoing care. The applicant also requested that the matter be referred to the Minister for intervention under s 351 of the *Migration Act 1958* (Cth).

The Tribunal considered clauses 836.212 and 836.221 of the Regulations, which require the applicant to be a carer of an Australian relative and to be a carer at the time of the decision. The definition of 'carer' in regulation 1.15AA was central to the determination. The applicant’s representative conceded that the applicant’s son did not meet the requirements of regulation 1.15AA(2), which mandates a medical condition causing physical, intellectual, or sensory impairment with a specific rating, and a continuing need for direct assistance for at least two years. Consequently, the applicant could not obtain the required Carer Visa Assessment Certificate. The Tribunal accepted that the applicant did not meet the criteria under clause 836.211 and the time of decision criteria under clause 836.221.

Despite affirming the decision not to grant the visa, the Tribunal agreed with the applicant that there were strong compassionate circumstances warranting referral to the Minister for attention. The Tribunal noted the applicant's three-year-old son, an Australian citizen, was entirely reliant on his mother for care and support. The Tribunal considered the Ministerial guidelines relating to the Minister’s discretionary power under s 351 and concluded that the case should be referred to the Department for the Minister’s consideration.