Ibaida (Migration) - [2022] AATA 5273

Ibaida (Migration) [2022] AATA 5273 (1 September 2022)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Ms Sultana Ibaida

VISA APPLICANTS: Mr Khaled Ibaida Ms Ghadeer Ibaida

REPRESENTATIVE: Mr Mohammed Mirza (MARN: 0747557)

CASE NUMBER: 1923774

HOME AFFAIRS REFERENCE(S): OSF2015/036044

MEMBER: Margie Bourke

DATE: 1 September 2022

PLACE OF DECISION: Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 01 September 2022 at 6:49pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of the Australian relative – no response to s.359 invitation – loss of entitlement to a hearing – primary visa applicant deceased – assistance cannot reasonably be provided/obtained – other relatives – adult grandchildren – other services – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359C. 360, 363A
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 116.221

CASES

Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

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 on 26 June 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

The visa applicants applied for the visa on 28 June 2015. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). At the time of application there was a primary visa applicant and two secondary visa applicants. Prior to the decision of the Department, the Department was advised that primary visa applicant was deceased. The first named visa applicant who had been a secondary visa applicant, then advised that the Department that he sought to meet the primary criteria. In the present case, the first named applicant is seeking to satisfy the primary criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.116.221.

The delegate refused to grant the visas on the basis that cl.116.221 was not met because the delegate was not satisfied the first named applicant met the definition of carer in r.1.15AA.

The applicant lodged an application for review of the Department’s decision record with the Tribunal on 26 August 2019, and provided the Tribunal with a copy of that Department’s decision record dated 26 June 2019.

The CVAC (Carer Visa Assessment Certificate) provided to the Department was dated 21 April 2015. In correspondence with the review applicant dated 29 July 2021, the Tribunal invited the review applicant to advise if she wished to obtain an updated CVAC. The review applicant advised the Tribunal of her intention to provide an…

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

AGLC: Ibaida (Migration) [2022] AATA 5273
Case: [2022] AATA 5273
Decision Date: 1 September 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the application of Ms Ibaida for an Other Family (Migrant) (Class BO) visa, Subclass 116 (Carer). The visa was sought on the basis that Ms Ibaida was the carer of her Australian relative. The primary visa applicant, who was the Australian relative, had since passed away. The AAT affirmed the delegate's decision to refuse the visa.

The Tribunal was required to determine whether the applicant had established that she was the carer of the Australian relative, and whether the circumstances of the relative's death meant that assistance could not reasonably be provided or obtained from other relatives or services. The Tribunal also considered the implications of the applicant not responding to a section 359 invitation, which resulted in a loss of entitlement to a hearing.

In its reasoning, the Tribunal noted that the applicant had failed to provide a satisfactory response to the invitation issued under s 359 of the *Migration Act 1958* (Cth), which led to the loss of her entitlement to a hearing. Furthermore, the Tribunal found that even if a hearing had been held, the applicant had not established that she was the carer of the Australian relative as required by the visa criteria. The death of the Australian relative meant that the core requirement of providing care could no longer be met, and the Tribunal was not satisfied that assistance could not reasonably be provided or obtained from other relatives or services, particularly given the applicant's failure to engage with the process.

The Tribunal affirmed the delegate's decision to refuse the visa.

Orders