The applicant is a carer of the Australian relative mentioned in clause 116.211.
[2]
In this case for the purposes of cl 116.211, the visa applicant claims to be a carer of her mother Ms Maryam Ahmed Qaiyumi, who the Tribunal accepts is an Australian citizen.
Cl 116.212 however clearly and unequivocally states that the visa applicant must be sponsored by the Australian relative mentioned in cl 116.211 (emphasis added) if that relative has turned 18, or by their spouse or de facto partner of the Australian relative.
Cl 116.212 therefore relevantly requires that the visa applicant must be sponsored by the Australian relative mentioned in cl 116.211. The Australian relative in this case mentioned in cl 116.211 is the visa applicant's mother Ms Maryam Ahmed Qaiyumi. The visa applicant however was not sponsored by her mother, rather she was sponsored by her brother Mr Sayed Waleed Qayyumi who is the review applicant.
Therefore, the visa applicant does not meet the requirements of cl 116.211 and cl 116.212 at the time of application.
The review applicant has also made a submission that he is a valid sponsor of the visa applicant's application under reg. 1.20. The review applicant points out that he is an Australian citizen, he is the brother of the visa applicant, and he is usually resident in Australia. The Tribunal accepts he is all of those. This does not however obviate the requirement that the visa applicant meets the specific requirements for a subclass 116 visa as outlined in the Regulations. As discussed by the Tribunal previously, cl 116.212 requires the visa applicant be sponsored by (italics added) Australian relative mentioned (italics added) cl 116.211. In a subclass 116 visa, this makes clear that the sponsor and the Australian relative (the person receiving the care) are intended to be the same person. In this case, they are not. The visa applicant claims to be the carer of her mother, yet she is sponsored by her brother. The Tribunal subsequently rejects this submission of the review applicant.
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The review applicant has also claimed it was a "serious legal mistake" of the delegate to require his mother Ms Maryam Ahmed Qaiyumi to be a member of the family unit under reg. 1.12. The review applicant claims the member of the family unit requirement does not apply when the person requiring care - being his mother Ms Maryam Ahmed Qaiyumi - is the resident. The review applicant has highlighted reg. 1.15AA(1)(b)(i) that states "a person (being the resident or a member of the family unit of the resident) has a medical condition. The review applicant states this means the person with the medical condition can be the resident themselves, and there is no need for them to be a member of anyone else's family unit.
The Tribunal has taken into account the review applicant's submissions but finds he has misinterpreted the relevant regulations.
The Tribunal finds that the visa applicant was sponsored by her brother, the review applicant Mr Sayed Waleed Qayyumi. The Tribunal finds that the Australian relative (resident) is the visa applicant's brother Mr Sayed Waleed Qayyumi . The Carer certificate that accompanied the visa applicant's application however relates to Ms Maryam Ahmed Qaiyumi who is the mother of the visa applicant and the review applicant/sponsor.
As the person in need of care is not the resident, she must be a member of the family unit of the resident. Reg. 1.12 defines the term 'member of the family unit' and that definition does not include a parent. As Ms Maryam Ahmed Qaiyumi is the parent of the sponsor and review applicant Mr Sayed Waleed Qayyumi, she does not meet the definition of 'member of the family unit' of the resident.
The Tribunal subsequently is not satisfied that it is the Australian relative (resident) or a member of the family unit that has the relevant medical certificate to which the certificate relates. The Tribunal therefore is not satisfied the visa applicant meets the requirements of reg. 1.15AA(1)(b). The visa applicant is not a 'carer' as defined in reg. 1.15AA for the purpose of cl. 116.211 and cl 116.221. The Tribunal is not satisfied the visa applicant meets these provisions.
The Tribunal notes the review applicant made further submissions post-hearing pertaining to the biological relationship between himself, the visa applicant, and their mother. The Tribunal has accepted the veracity of the claimed biological relationship between the parties. Remarks were also made concerning the delegate disregarding the Carer Visa Assessment Certificate. The Tribunal has taken the claims into account but notes it has affirmed the delegate's refusal of the application on the basis the visa applicant does not meet cl 116.211 and cl 116.221 for the reasons discussed previously in this decision record.
For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.
The evidence before the Tribunal is that the visa applicant was born on 8 June 1983. The Tribunal finds that the visa applicant is not entitled to the grant of Subclass 114 (Aged Dependent Relative) visa as the visa applicant is not old enough to be granted an age pension under the Social Security Act1991. The visa applicant does not therefore meet the criterion for a Subclass 114 (Aged Dependent Relative) visa.
To be assessed as a remaining relative the visa applicant must have no near relatives living outside Australia. In oral evidence to the Tribunal, the review applicant confirmed that he and the visa applicant have siblings residing in Germany. The visa applicant's application form declares her father resides in Germany, as does her brother and sister. The Tribunal is therefore not satisfied the visa applicant meets the criterion for a Subclass 115 (Remaining Relative) visa.
[3]
The application of the secondary visa applicants Dr Javed Yasir, Miss Abeeha Fatima, Miss Ayesha Haadia and Mr Muhammad Bin Yasir were refused by the delegate on the basis that the primary visa applicant's visa had been refused. As the Tribunal has affirmed the delegate's decision and found that the visa applicant does not meet the relevant criteria for the grant of the visa, the Tribunal affirms the decision to refuse the applications of the secondary visa applicants.
The secondary visa applicants Dr Javed Yasir, Miss Abeeha Fatima, Miss Ayesha Haadia and Mr Muhammad Bin Yasir do not meet cl 116.321 as they are not members of the family unit of a person who satisfies the primary criteria for the grant of the visa.
There is no evidence, and no claims before the Tribunal, that the secondary visa applicant meets the primary criteria for the grant of an Other Family (Migrant) (Class BO) visa.
[4]
The review applicant discussed in some detail the challenges he, his wife and children are facing with providing care to his mother in their own home. The Tribunal notes the carer visa assessment certificate as well as the review applicant's post-hearing correspondence that discusses the chronic medical conditions his mother is currently facing. The Tribunal accepts the review applicant, and his family have faced a challenging time in providing care and support. The Tribunal accepts the ongoing demands are impacting the family adversely. The Tribunal also has considerable sympathy for the review applicant who sponsored the visa applicant himself (rather than his mother undertaking the sponsorship) in entirely good faith. The Tribunal accepts the review applicant sponsored his sister, the visa applicant, on the basis that he would be the one providing the necessary and required support to the visa applicant.
The Tribunal notes the Minister has discretionary powers under s 351 of the Act to replace a decision of a merits review tribunal with a decision more favourable to that person if the Minister thinks it is in the public interest to do so.
The review applicant has outlined in correspondence to the Tribunal a number of strong compassionate circumstances that he submits would represent unique or exceptional circumstances that warrant the referral of this case to the Minister. The Tribunal is both sympathetic of the review applicant's endeavours in this area. The Tribunal considers there are on the evidence compassionate circumstances that would arguably support Ministerial Intervention. The Tribunal has determined to refer this matter to the Minister on this basis.
[5]
The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (class BO) visas.
Parties
Applicant/Plaintiff:
Nguyen
Respondent/Defendant:
MICMSMA
Legislation Cited (1)
Regulation 1994(Cth)
Cases Cited (2)
Qayyumi (Migration) [2025] ARTA 1198 (8 July 2025)