El Cheikh (Migration)

[2020] AATA 3051

El Cheikh (Migration) [2020] AATA 3051 (23 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Rajaa El Cheikh

CASE NUMBER:  1811844

HOME AFFAIRS REFERENCE(S):          CLF2014/76469

MEMBER:Peter Smith

DATE:23 July 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration to determine if the following criteria is met:

·cl.836.212 of Schedule 2 to the Regulations;

·cl.836.221 of Schedule 2 to the Regulations

Statement made on 23 July 2020 at 11:07am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – updated carer visa assessment certificate provided to tribunal – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 15AA(1)(b)(i), (ii), Schedule 2, cls 836.212, 836.221

CASES

Huang v MIMIA [2007] FMCA 720

Huynh v MIMIA (2006) 152 FCR 576

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 April 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 May 2014. At that time, 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.

3. The delegate refused to grant the visa on the basis that cl.836.221 of Schedule 2 to the Regulations because the requirements of reg.1.15AA(1)(b)(i) and (ii) of the Regulations were not met.  The delegate found that the Carer Visa Assessment Certificate (CVAC) provided at the time of application was no longer valid.  Despite requests from the delegate to the applicant to provide an updated CVAC one was not provided.

4. As the applicant has now provided an updated CVAC, the Tribunal has concluded that the appropriate course is to remit the application for the visa to the Minister to reconsider whether the applicant meets the criteria for the grant of a Subclass 836 (Carer) visa under cl.836.212 and cl.836.221.

   DECISION

5. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration to determine if the following criteria is met:

   ·cl.836.212 of Schedule 2 to the Regulations;

   ·cl.836.221 of Schedule 2 to the Regulations

   Peter Smith
   Member