Tran (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer visa), made by a Vietnamese citizen who is the daughter of an Australian citizen. The applicant sought to demonstrate that she met the definition of a "carer" under regulation 1.15AA of the Migration Regulations 1994, which is a requirement for satisfying clause 836.221 of Schedule 2 to the Regulations. The court was required to determine whether the applicant met this definition.

The legal issues before the court were whether the applicant was a "relative" of the Australian resident, and whether a Carer Visa Assessment Certificate (CVAC) provided was sufficient to establish that the Australian resident had a medical condition causing significant impairment and a continuing need for direct assistance. The court also had to consider whether this assistance could reasonably be provided by other relatives or obtained from Australian services, and if the applicant was willing and able to provide such assistance.

The court found that the applicant, as the daughter of the Australian resident, satisfied the requirement of being a "relative" under regulation 1.15AA(1)(a). Furthermore, the court considered the CVAC dated 29 December 2017, which assessed the Australian resident's impairment rating at 65 and indicated a continuing need for direct assistance for at least two years. Given the resident's age and medical history, the court deemed it reasonable to accept this certificate without requiring a further assessment. The court concluded that the applicant met the definition of a carer under regulation 1.15AA and therefore satisfied clause 836.221.

Consequently, the court remitted the application for reconsideration by the Minister, with the direction that the criterion under clause 836.221 of Schedule 2 to the Regulations had been met. The remaining criteria for the Subclass 836 visa were to be considered in the reconsideration.