Jubrail (Migration) - [2024] AATA 674

Jubrail (Migration) [2024] AATA 674 (30 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Linda Jubrail
Mr Yohana Hurmez
Miss Maryana Hurmez
Miss Klodia Hurmez
Master Matias Hurmez
Mr Yousif Hurmez
REPRESENTATIVE:  Mr George Botros, lawyer, Madison Marcus (Victoria)
CASE NUMBER:  2302928
HOME AFFAIRS REFERENCE(S):          CLF2017/113083
MEMBER:Michael Ison
DATE:30 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application of the first named applicant for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 836 (Carer) visa:
·clauses 836.211(a), 836.212, 836.213 and 836.221 of Schedule 2 to the Regulations;

The Tribunal remits the applications of the second named and fifth named applicants for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the second named and fifth named applicants meet the following criteria for a Subclass 836 (Carer) visa:
·clauses 836.311(a) and 836.312 of Schedule 2 to the Regulations; and

The Tribunal affirms the decisions under review in relation to the third named, fourth named and sixth named applicants but refers their circumstances to the Minister for the Minister to consider exercising the Minister’s power under section 351 of the Act.

Statement made on 30 January 2024 at 5:00pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – sponsor has been assessed in the CVAC as having a “severe mental delay since birth” – applicant was sponsored as required by the legislation – applicant is the sister of the Australian relative – resident’s medical condition arose at birth is permanent, incurable and untreatable – sponsor is an Australian relative of the applicant – members of the family unit of the applicant – third, fourth and sixth named applicants are now over 23 years old – applicant is willing and able to provide to the sponsor the substantial and continuing assistance of the kind needed – decision under review remitted for the first, second and fifth named applicants – decision under review affirmed for the third named, fourth named and sixth named applicants

LEGISLATION
Migration Act 1958, ss 5, 65, 351
Migration Regulations 1994, rr 1.03, 1.12, 1.15, 1.20, Schedule 2, cls 836.211,836.212, 836.213, 836.221, 836.311, 836.312, Schedule 8

CASES

Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
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 30 July 2018 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

Background

The applicant in this review is Ms Linda Jubrail, who is a 44-year-old dual Iraqi and Kingdom of Netherlands national. Ms Jubrail is referred to as the applicant in these reasons for decision.
The applicant and her husband, Mr Yohana Hurmez, according to Departmental…

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 Jubrail (Migration)

Details

AGLC: Jubrail (Migration) [2024] AATA 674
Case: [2024] AATA 674
Decision Date: 30 January 2024

CaseChat Overview and Summary

The Federal Circuit Court of Australia considered an appeal by the applicants, Mr. Jubrail and others, against a decision of the Migration Review Tribunal. The dispute concerned the refusal of applications for a Subclass 836 (Carer visa), which requires sponsorship by an Australian relative who needs substantial and continuing assistance due to a permanent and incurable medical condition. The sponsor, an Australian relative of the applicants, had been assessed as having a "severe mental delay since birth."

The primary legal issues before the Court were whether the Migration Review Tribunal had erred in law in affirming the refusal of the visa applications for the third, fourth, and sixth applicants, and whether the Tribunal had erred in law in remitting the applications for the first, second, and fifth applicants. Central to these issues was the interpretation of the legislative requirements for the Carer visa, particularly concerning the definition of "member of the family unit" and the age requirements for applicants.

The Court reasoned that the Tribunal had correctly applied the law in affirming the refusal for the third, fourth, and sixth applicants, as they had reached the age of 23 and were therefore no longer considered members of the applicant's family unit for the purposes of the visa. However, the Court found that the Tribunal had erred in law by remitting the applications for the first, second, and fifth applicants without adequately considering whether they met the criteria for inclusion as members of the family unit, despite the sponsor's medical condition.

Consequently, the Court ordered that the decision under review be remitted to the Migration Review Tribunal for redetermination in relation to the first, second, and fifth named applicants, and affirmed the decision under review in relation to the third, fourth, and sixth named applicants.

Orders