Abdelmalak (Migration) - [2021] AATA 4275

Abdelmalak (Migration) [2021] AATA 4275 (20 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Ms Naema Gabrail Yacoub Abdelmalak
CASE NUMBER:  1904543
HOME AFFAIRS REFERENCE(S):          CLF2017/10352
MEMBER:Meredith Jackson
DATE:20 October 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:
·cl 838.212 of Schedule 2 to the Regulations.

Statement made on 20 October 2021 at 2:44pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – applicant was and is wholly or substantially reliant on her son for financial support – applicant is the aged dependent relative of an Australian relative at the time of application and the time of decision – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03,1.05, Schedule 2, cls 838.212, 838.221

CASES
Huang v MIMIA [2007] FMCA 720
Huynh v MIMIA (2006) 152 FCR 576

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 February 2019 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 19 January 2017. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 838 visa which requires the primary applicant to be the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen. The criteria for a Subclass 838 visa are set out in Part 838 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly in this matter, the primary criteria to be met include cl 838.212.

3. The delegate refused to grant the visa on the basis that cl 838.212 was not met because the applicant did not meet the requirements of regulation 1.05A(1)(b) at the time of application.

4. The applicant Mrs Naema Gabrail Yacoub Abdelmalak, appeared before the Tribunal by video link on 5 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Hany Ibrahim Faltaous Goworgious, the applicant’s sponsor and son. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

BACKGROUND

6. The visa applicant is Naema Gabrail Yacoub Abdelmalak, aged 70, a national of Egypt whose application for the visa was made on the basis that she is the aged dependent relative of her sponsor, Hany Ibrahim Faltaous Goworgious, an Australian citizen by grant, whom she claims as her relative. ‘Relative’…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abdelmalak (Migration)

Details

AGLC: Abdelmalak (Migration) [2021] AATA 4275
Case: [2021] AATA 4275
Decision Date: 20 October 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the application of Ms. Abdelmalak for an Other Family (Residence) (Class BU) visa, specifically the Subclass 838 (Aged Dependent Relative) visa. The core of the dispute concerned whether Ms. Abdelmalak met the criteria of being an aged dependent relative of an Australian relative at both the time of her application and the time of the AAT's decision.

The Tribunal was required to determine whether Ms. Abdelmalak was, at the relevant times, wholly or substantially reliant on her son for financial support. This assessment was crucial to establishing her eligibility as an aged dependent relative under the Migration Regulations.

The Tribunal found that Ms. Abdelmalak was indeed wholly or substantially reliant on her son for financial support. This finding satisfied the dependency requirement of the visa subclass. Consequently, the Tribunal remitted the decision to the delegate for reconsideration, indicating that the applicant had met the necessary criteria for the visa.

Orders