Talal (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 Carer visa. The applicant sought review of a decision not to grant this visa. The core of the dispute revolved around whether the applicant met the criteria for the visa, particularly in relation to providing care for an Australian relative.

The legal issues before the Tribunal were twofold. Firstly, whether the applicant satisfied the requirements of the Migration Regulations 1994 for the grant of a Subclass 836 Carer visa, including the definition of a 'carer' under regulation 1.15AA. Secondly, and crucially, the Tribunal had to consider whether the applicant was in a position to be granted a visa, given that they had departed Australia over two years prior and had no valid visa to re-enter the country.

The Tribunal reasoned that while the substantive criteria for a Carer visa were relevant, the applicant's circumstances outside Australia presented a fundamental barrier. The applicant had departed Australia on 27 February 2021 and had not re-entered. Their Bridging B visa had ceased over a year prior, leaving them without a valid visa to return. Section 65 of the Migration Act 1958 requires the Minister to be satisfied that all criteria for a visa are met, and section 40 allows for regulations to specify circumstances in which visas may be granted, including whether the applicant is outside Australia. The Tribunal found that the applicant was outside Australia and unable to return, and therefore did not meet the criteria for the grant of the visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 836 visa.