Carer: meaning of “2 years” revisited

Federal Court: as reported by Migration Law Updates in Dec 2018, the Federal Circuit Court had held that the reference to "2 years" under reg 1.15AA of the Migration Regulations 1994 was linked to the "medical condition", not the "assistance" to be provided by the carer. That decision was appealed.

Summary

The appellant applied for a subclass 836 (carer) visa. One criterion to be satisfied at the time of decision (cl 836.223) was that “[t]he applicant is a carer of a person referred to in clause 836.212”'.

Regulation 1.15AA of the Migration Regulations 1994 provided (and continues to provide) as follows (underlining emphasis added):

1.15AA Carer

(1)     An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:

...

(b)     according to a certificate that meets the requirements of subregulation (2):

(i)     a person (being the resident or a member of the family unit of the resident) has a medical condition; and

...

(iv)     because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life...

The Department refused that application. The appellant then applied to the Tribunal for merits review of that decision, but the Tribunal affirmed the Department's decision. The appellant subsequently applied to the Federal Circuit Court (FCCA) for judicial review of that application. The FCCA dismissed that application and the appellant eventually appealed the FCCA's decision to the Federal Court (FCA).

Both the Tribunal and the FCCA had interpreted the terms "2 years" under r 1.15AA(1)(b)(iv) to be linked to the "medical condition", instead of the "assistance". Two questions were put to the FCA:

Question 1: do the terms "2 years" under r 1.15AA(1)(b)(iv) link to the "medical condition" or the "assistance"?

Question 2: if they link to the assistance (i.e. if both the FCCA and AAT made an error), is there utility in remitting the matter to the Tribunal for re-determination, given that more than 2 years have passed between the date the certificate was issued and the date the FCA decided the matter?

The FCA answered those questions as follows...

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