Wickramasuriya (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The applicants were Mr. Wickramasuriya and Ms. Wickramasuriya, who sought to establish that Mr. Wijewardana was a carer of an Australian relative. The primary decision had not expressly found that Mr. Wickramasuriya was the uncle of Mr. Wijewardana, a relationship crucial for establishing the "Australian relative" criterion.

The Tribunal was required to determine whether the visa applicant, Mr. Wijewardana, claimed to be a carer of an Australian relative, and whether, at the time of the decision, he was indeed a carer. More specifically, the Tribunal had to consider whether the necessary assistance for Jessica, the Australian relative's child, could reasonably be provided by another relative or obtained from Australian welfare, hospital, nursing, or community services. The Tribunal also considered whether the applicant was willing and able to provide substantial and continuing care.

The Tribunal accepted the evidence of Mr. and Ms. Wickramasuriya as truthful and noted that the relationship between Mr. Wijewardana and Mr. Wickramasuriya did not appear to be in controversy, despite the lack of an express finding in the primary decision. The Tribunal applied the President’s Direction on Conducting Migration and Refugee Reviews, restricting its review to the identified issues. The Tribunal found that the criteria under cl.116.211 and cl.116.221 of Schedule 2 to the Migration Regulations 1994 were met. Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that these specific criteria were satisfied.