Daknach (Migration) - [2024] AATA 1190

Daknach (Migration) [2024] AATA 1190 (17 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Norhan Daknach
CASE NUMBER:  2317218
HOME AFFAIRS REFERENCE(S):          CLF2018/29748
MEMBER:David Crawshay
DATE:17 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 17 May 2024 at 9:31am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – member of the family unit – visa applicant over 23 years – visa processing delays – visa applicant in employment – request for Ministerial Intervention – able to apply for a Partner visa onshore – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 48, 65, 351, 417
Migration Regulations 1994, Schedule 2, cls 820.211, 836.221, 836.321; rr 1.03, 1.05, 1.12, 2.12
CASES
Cole v MIBP [2018] FCAFC 66
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 19 March 2018. The delegate refused to grant the visa on 10 October 2023 on the basis that the applicant did not satisfy the requirements of cl.836.321 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 836.321 of Schedule 2 is a time-of-decision criterion. It requires the applicant to continue to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 836 visa. The primary applicant in this matter is Mr Mohamad Adel Daknach, the applicant’s father, who has already been granted a Subclass 836 visa after the same Tribunal remitted the matter for reconsideration with the direction that he met the definition of “carer” for the purposes of cl.836.221 (refer to matter number 1908521).
The applicant appeared before the Tribunal on 10 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, Mr Assel Dawood.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the applicant continues to be a member of the family unit of the primary applicant and satisfies cl.836.321.
Section 5(1) of the Act provides that “member of the family unit” of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides “member of the family unit” has the meaning set out in r.1.12. The definition in r.1.12 applies for the purposes of both the Act and the Regulations.
Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is, among other things, a child or step-child of the family head or…

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 Daknach (Migration)

Details

AGLC: Daknach (Migration) [2024] AATA 1190
Case: [2024] AATA 1190
Decision Date: 17 May 2024

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal regarding a decision to refuse a Subclass 836 (Carer) visa. The applicant sought to be recognised as a member of the family unit of the primary applicant, a requirement for this visa subclass.

The central legal issue before the Tribunal was whether the applicant, who was over 23 years of age, satisfied the definition of "member of the family unit" as defined in regulation 1.12 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant was wholly or substantially reliant on the primary applicant due to an incapacity for work resulting from the loss of bodily or mental functions.

The Tribunal reasoned that for an applicant over 23 years of age to be considered a member of the family unit under regulation 1.12(2)(b)(iii), they must demonstrate reliance on the family head due to incapacity for work. The delegate's original decision noted the applicant's employment history and university studies, finding no evidence of such incapacity. The applicant's response to a subsequent information request from the Tribunal did not address the criterion of incapacity but instead focused on factors relevant to Ministerial intervention. At the hearing, the applicant conceded that she did not meet this criterion.

Consequently, the Tribunal concluded that the applicant did not satisfy the definition of a member of the family unit as required by the regulations. The decision under review was therefore affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the applicant continues to be a member of the family unit of the primary applicant and satisfies cl.836.321. Section 5(1) of the Act provides that “member of the family unit” of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides “member of the family unit” has the meaning set out in r.1.12. The definition in r.1.12 applies for the purposes of both the Act and the Regulations. Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is, among other things, a child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner. Additional requirements exist if an applicant has turned 18. If an applicant is aged between 18 and 22 years of age, that applicant must be dependent on the family head (or partner). If an applicant is 23 years of age or older, that applicant must be wholly or substantially reliant on the family head (or partner) because he or she is incapacitated for work due to loss of bodily or mental functions. In this instance, the applicant is claiming to be the child of the primary applicant, and none of the other categories applies to her. As the applicant has turned 23 at the time of this decision, she must be found to be dependent under r.1.05A(1)(b): r.1.12(2)(b)(iii). In order to be found to be dependent under r.1.05A(1)(b), the applicant needs to be wholly or substantially reliant on the primary applicant or the review applicant for financial support because she is incapacitated for work due to the total or partial loss of her bodily or mental functions. In her decision to refuse the applicant’s visa, the delegate considered the contents of the applicant’s Form 47A and specifically information that she had been employed in two different roles at separate businesses and that she had undertaken a Bachelor of Biomedical Science course at RMIT University from March 2017 to November 2020. The delegate found that no claims had been made or evidence submitted to indicate that the applicant was incapacitated for work due to the total or partial loss of her bodily or mental functions. No other written information has been submitted that would address the issue of whether the applicant is a member of the family unit of the primary applicant. On 13 March 2024, the applicant provided a response to the Tribunal’s s.359(2) letter of 29 February 2024 requesting information about whether she satisfied the definition of “member of the family unit”. However, her response in that letter did not deal with the issue but only dealt with factors that would be relevant to consideration of Ministerial intervention (which are considered below). At hearing, the applicant agreed with the Tribunal that she did not meet the criterion.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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