Gulugul (Migration) - [2022] AATA 2269

Gulugul (Migration) [2022] AATA 2269 (5 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Ms Judith Toto Gulugul
REPRESENTATIVE:  Ms Kathryn Smith
CASE NUMBER:  1835476
HOME AFFAIRS REFERENCE(S):          CLF2017/43175
MEMBER:Meredith Jackson
DATE:5 April 2022
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 following criteria for a Subclass 836 (Carer) visa are met:
·cl 836.221 of Schedule 2 to the Regulations.

Statement made on 05 April 2022 at 9:52 am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) –valid Carer Visa Assessment Certificate – rating exceeds the impairment rating specified by the relevant instrument – visa applicant is a carer of the Australian relative – sponsor’s needs for assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 376
Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cl 836.221

CASES

Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

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 14 November 2018 to refuse to grant the review 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 14 June 2017. 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 (Cth) (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 836.221.
3.The delegate refused to grant the visa on the basis that cl 836.221 was not met because the applicant was not the carer of an Australian relative as defined. The delegate was not satisfied that the availability of suitable residential aged care facilities or in-home assistance from community/welfare organisations or professional providers had been fully investigated by the applicant and sponsor. It had not been demonstrated therefore, that care of the sponsor, Ms Fidelma Marmar Jones, cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia
4.The applicant appeared before the Tribunal on 31 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Fidela Marmar Jones and from the sponsor’s adopted daughter, Theresia Aghayere, an Australian citizen.
5.The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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 Gulugul (Migration)

Details

AGLC: Gulugul (Migration) [2022] AATA 2269
Case: [2022] AATA 2269
Decision Date: 5 April 2022

CaseChat Overview and Summary

The applicant, Gulugul, sought judicial review of a decision made by the Minister for Immigration and Border Protection concerning her application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer visa). The dispute centred on whether the applicant met the eligibility criteria for this visa, which requires a valid Carer Visa Assessment Certificate indicating an impairment rating that exceeds a specified threshold, and that the Australian relative's needs for assistance cannot reasonably be met by other means. The matter came before Meredith Jackson J of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law in refusing the visa application. This involved determining whether the delegate had properly considered the evidence regarding the impairment rating of the Australian relative and whether the delegate had correctly applied the legislative criteria concerning the inability of other relatives or Australian services to provide the necessary care. The Court was required to assess if the delegate's decision was affected by an error of fact or law, particularly in relation to the assessment of the sponsor's needs and the availability of alternative care solutions.

Meredith Jackson J found that the delegate had failed to adequately consider the evidence presented by the applicant concerning the sponsor's needs and the limitations of available community services. The Court reasoned that the delegate's assessment of the sponsor's needs was too narrow and did not properly engage with the evidence that indicated the sponsor's needs could not reasonably be met by a relevant relative or obtained from welfare, hospital, nursing, or community services in Australia. Consequently, the Court concluded that the delegate's decision was affected by an error of law.

The Court ordered that the decision under review be remitted to the Minister for reconsideration according to law.

Orders