Toma (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 the carer of her mother, who was an Australian relative. The dispute centred on whether the applicant met the criteria for being a carer, particularly concerning the need for her assistance and the inability of other family members or services to provide the required care.

The court was required to determine whether the applicant satisfied clause 836.212 of Schedule 2 to the Migration Regulations 1994, which pertains to being a carer of an Australian relative. Specifically, the Tribunal had to assess whether the applicant's mother had a medical condition causing significant impairment, necessitating direct, ongoing assistance. Furthermore, the Tribunal needed to consider whether such assistance could reasonably be provided by other relatives of the sponsor or obtained from Australian welfare, hospital, or community services, as stipulated in regulation 1.15AA(1)(e).

The Tribunal found that the applicant's oral evidence, supported by the sponsor, the family priest, and the applicant's sister, was spontaneous and reliable. This evidence satisfied the Tribunal that the applicant claimed to be the carer of her mother, thus meeting clause 836.212. Regarding the inability of others to provide care, the Tribunal was persuaded that the 24-hour, round-the-clock personal care required by the sponsor could not reasonably be provided individually or collectively by other relevant family members, nor could it be reasonably obtained from third-party services, especially given the sponsor's cultural and language background within a small community.

Consequently, the Tribunal remitted the applications for the visa to the Minister for reconsideration, with the direction that the criteria under clause 836.212 and clause 836.221 of Schedule 2 to the Regulations were met.