On 28 September 2018 the Australian Federal Circuit Court heard a case (Gorgees v Minister for Immigration & Anor) concerning the refusal of a Carer visa (subclass 836). The applicant lodged the visa application on the basis that he claimed to be the carer of his mother. The applicant provided several documents to support his claims that he is willing and able to provide constant carer for his mother to provide full care and assistance. The visa application was refused by the Minister. The applicant appealed the refusal decision to the Administrative Appeals Tribunal but his application was affirmed by the Member.
To qualify for a Carer visa, it is a requirement under the Migration Regulations at the time the application is made the visa applicant claims to be the carer of an Australian relative. However, at the time of decision, the applicant must satisfy the Minister that he or she is a carer of an Australian relative. The time of decision criteria is also consistent with the definition of ‘Carer’ under the Regulations which is defined to mean an applicant for a visa is a carer of a person.
On appeal to the Federal Circuit Court, the applicant argued that the Tribunal made a legal error in that it applied the wrong legal test by asking itself the wrong question. This argument hinged on the fact that the Regulations comprehend that a person can be “a Carer” and not be the exclusive person providing care to the person, i.e. “the Carer”. This is a misstatement of the correct legal test in the time of decision criteria for a Subclass 836, as there was a reference to “the Carer” instead of to the correct requirement that the applicant be “a Carer” of the Australian resident.
How did the Court handle this issue?
The Court stated that the reference to being “a carer” of a person does not impose a requirement that at the time of decision the visa applicant is or claims to be “the Carer”, in the sense of the sole carer, of his or her Australian relative. The Court found that the Tribunal misconstrued the Regulation in finding that it required that at the time of decision the applicant is the carer of the Australian resident. Furthermore, in making its findings, the Tribunal also proceeded on the basis that the visa applicant must be the full-time carer of his mother to be able to provide her with substantial and continuing assistance. The lesson to learn from this case is that there is no requirement that an applicant for a Carer visa necessarily be the sole carer for an Australian relative. Rather, the requirement is that the applicant is willing and able at the time of decision to provide to the resident substantial and continuing assistance of the kind needed, that is, direct assistance with the practical aspects of life. In this case, the fact that in the past the visa applicant had (for part of the time) been his mother’s sole carer did not meant that such a level of care by the visa applicant had to be sustained to satisfy the time of decision criteria. There is a difference between ‘the Carer” at the time of application and “a Carer” at the time of decision.
