Edejer (Migration) - [2020] AATA 5084

Edejer (Migration) [2020] AATA 5084 (26 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Ernestine Edejer
CASE NUMBER:  1719241
HOME AFFAIRS REFERENCE(S):          CLF2016/94024
MEMBER:Kira Raif
DATE:26 August 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 26 August 2020 at 11:24am

LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 836.212, 836.221

CASES
Bader v Minister for Immigration (2018) FCCA 485

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 Immigration and Border Protection on 14 August 2017 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 5 December 2016. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the delegate was not satisfied the applicant was a carer of an Australian relative. The applicant seeks review of the delegate’s decision.
The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant appeared before the Tribunal on 26 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
At the time the application was made, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.836.212 and cl. 836.221.
Clause 836.212 requires that the applicant claims to be a carer of an Australian relative. Clause 836.221 requires that the applicant is a carer of the person referred to in co. 836.212. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations and includes a close…

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.

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Details

Case: [2020] AATA 5084
Decision Date: 26 August 2020

CaseChat Overview and Summary

The applicant sought review of a decision by the Migration Review Tribunal (MRT) to affirm the refusal of an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer visa). The core of the dispute concerned whether the applicant's cousin qualified as a 'relative' for the purposes of clause 835.221 of the Migration Regulations 1994 (Cth).

The primary legal issue before the Tribunal was whether the applicant's cousin was a 'relative' as defined by the relevant visa criteria. A secondary issue was whether the Tribunal possessed any discretion to waive the statutory criteria if the applicant failed to meet them.

The Tribunal determined that a cousin does not fall within the definition of 'relative' as stipulated in clause 835.221. Consequently, the applicant did not satisfy the prescribed criteria for the Subclass 836 visa. The Tribunal found it had no discretion to waive these statutory requirements. The Tribunal affirmed the decision not to grant the applicant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons above, the applicant does not meet the criteria for a Subclass 836 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. DECISION The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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