WANG (Migration)

The Administrative Appeals Tribunal considered an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to be recognised as a carer for their mother, who resided in Australia. The central dispute revolved around whether the applicant met the requirements for a Carer visa, particularly concerning the medical condition of the sponsor and the associated impairment rating. A secondary issue arose regarding whether the application for the Subclass 836 visa could also be considered a valid application for a Subclass 835 (Remaining Relative) visa, and the implications for the visa application fee.

The Tribunal was required to determine two primary legal issues. Firstly, whether the sponsor, the applicant's mother, had been assigned an impairment rating of at least 30 points, as detailed in a Carer Visa Assessment Certificate (CVAC), thereby satisfying the criteria outlined in Regulation 1.15AA of the Migration Regulations 1994. Secondly, the Tribunal had to consider whether the application lodged for a Subclass 836 (Carer) visa could also be deemed a valid application for a Subclass 835 (Remaining Relative) visa, and if so, whether the correct visa application fee had been paid.

The Tribunal's reasoning focused on the requirements of Regulation 1.15AA, which mandates that a person seeking to be recognised as a carer must have a relative with a medical condition that causes a physical, intellectual, or sensory impairment, resulting in a specific rating under the Impairment Tables. The evidence presented indicated that a CVAC issued in November 2016 assessed the sponsor with a total impairment rating of 20 points, which fell short of the required minimum of 30 points stipulated by legislative instrument IMMI 17/126. Consequently, the Tribunal found that the applicant did not meet the criteria for a Subclass 836 visa. Regarding the argument that the application could also be for a Subclass 835 visa, the Tribunal implicitly rejected this by affirming the decision not to grant the visa, and the discussion on the application fee was in the context of the applicant's unsuccessful attempt to reframe the application.

Ultimately, the Tribunal affirmed the decision not to grant the applicant an Other Family (Residence) (Class BU) visa. The applicant failed to satisfy the essential criterion of the required impairment rating for a Subclass 836 (Carer) visa.