The applicant in this case was seeking to satisfy the criteria for the grant of a Subclass 836 (Carer) visa. The delegate had refused to grant the visa on the basis that one of the criteria was not met; whether the sponsor was a settled resident at the time of lodgement. Therefore Immigration Solutions Lawyers (ISL) took the case to the Migration Review Tribunal. The issue was whether the applicant was the carer of an Australian relative who was settled in Australia.

The applicant claimed to be the caree’s mother, and the Tribunal was satisfied that this was correct. However, the Tribunal also had to determine whether the caree was settled at the time of lodgement. The meaning of settled‚ is lawfully resident in Australia for a reasonable period. Under departmental guidelines, two years is generally considered to be a reasonable period, however each case must be considered on an individual basis. The caree had been lawfully living in Australia for over two years, but was in Australia for a reasonably short period of time before she lodged an application to sponsor her son to be her carer. This short period of time was of concern to the Tribunal. When examining the facts of the case, it became clear that the caree had successfully sought a protection visa, was suffering from a serious medical situation and was unable to care for herself and unable to travel. The tribunal took into account the compassionate and compelling circumstances, namely her being a refugee and her medical conditions, and found that she was a settled permanent resident.

The assistance provided by the carer also must not have been able to be reasonably provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible New Zealand citizen; or obtained from welfare, hospital, nursing or community services in Australia. ISL submitted that the caree did have other children in Australia but they could not reasonably have assisted their mother. One was a single parent with multiple children who was not physically able to assist the caree, and the other was studying and working as well as caring for his own children. ISL also submitted that the caree could also not access welfare, hospital, nursing or community services in Australia because she did not want persons other than her family looking after her. There were also no care facilities in the caree’s area that could cater to her cultural needs. As such, the Tribunal found that it would not be reasonable for her to be placed in high level residential care.

The Tribunal found it was appropriate to remit the application for the visa for reconsideration.