Tuqiri (Migration)

This matter concerned an application for review of a decision to refuse an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to be recognised as the carer for her aunt, Ms Tavaita Velerau Tuqiri, an Australian resident who required ongoing care due to a medical condition. The decision under review was made by the Tribunal, presided over by Andrew McLean Williams.

The central legal issue before the Tribunal was whether the applicant met the requirements of clause 836.221 of the Migration Regulations. This involved determining if the applicant was a relative of the Australian resident, if the Australian resident had a qualifying medical condition requiring ongoing care, and crucially, whether care could not be provided by any other relatives residing in Australia. The Tribunal also had to consider if the applicant had claimed to be the carer and if the Australian resident's care needs were assessed as requiring at least 30 points on the impairment tables.

The Tribunal found that the applicant had established her familial relationship to Ms Tuqiri and that Ms Tuqiri had a qualifying medical condition with an impairment rating of 40, necessitating ongoing assistance. However, the Tribunal identified a critical deficiency in the evidence concerning the inability of other Australian resident relatives to provide care. While some relatives provided reasons for their inability to assist, the Tribunal noted a lack of evidence from one relative, Tavaita Tuqiri (Jnr), explaining why she could not provide care. This absence of evidence meant the applicant had not fully satisfied the requirement that care could not be provided by any other relatives in Australia.

Consequently, the Tribunal affirmed the decision under review, finding that the applicant had not discharged the onus of proving that no other relatives in Australia were able to provide the necessary care.