Subclass 836 Carer Visa Remitted After Tribunal Found Caree Met Settled Residency Requirement

Visa TypeSubclass 836

CategoryAll Cases

Case Summary

A Subclass 836 Carer Visa was refused on the basis that the caree was not 'settled' at the time of lodgement. We successfully argued before the Migration Review Tribunal that the caree's circumstances as a refugee with serious medical conditions satisfied the settled residency requirement, and that no other person or service could reasonably provide the required care.

Background

Our client was seeking a Subclass 836 (Carer) Visa to remain in Australia as the carer of a close family member. The delegate refused the application on the basis that the caree was not 'settled' at the time of lodgement — the caree had only recently applied and been granted a protection visa and had been resident in Australia for a relatively short time despite technically having lived there for over two years. The case went to the MRT. The Tribunal also needed to be satisfied that the care required could not reasonably be provided by another relative or by welfare, hospital, nursing or community services.

Challenges

The caree had been in Australia only a short time before sponsoring the applicant, raising concerns about 'settled' status
Demonstrating that 'settled' in this context extended beyond a formal two-year period to include compassionate circumstances
Other children of the caree were in Australia but unable to provide the required care for various personal reasons
The caree's cultural needs meant standard community care facilities were not a viable alternative

How We Helped

We argued that the concept of 'settled' residency should be assessed on the individual circumstances of each case, and that the caree's status as a recognised refugee, her serious medical conditions, and her inability to travel or care for herself established compelling and compassionate factors that supported a finding of settled residency. We also submitted detailed evidence about why the caree's other children could not reasonably assist — one was a single parent with multiple young children and physical limitations, and the other was working, studying and caring for his own family. We further submitted that the caree could not access community care services because she did not wish for non-family members to care for her, and that no local facility could meet her cultural needs.

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Key Success Factors

Compelling argument that compassionate circumstances, including refugee status and medical conditions, supported a finding of 'settled' residency
Detailed evidence that the caree's other family members could not reasonably provide the required care
Evidence that no welfare, hospital, nursing or community service could adequately meet the caree's cultural and care needs
Thorough documentation of the caree's medical situation and her inability to care for herself

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Outcome

The Tribunal found the caree to be a settled permanent resident and determined that it was not reasonable for her to be placed in residential care. The application was remitted for reconsideration.

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