Misgena (Migration) - [2023] AATA 2050

Misgena (Migration) [2023] AATA 2050 (16 June 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Mrs Tirhas Woldu Misgena

VISA APPLICANTS: Mrs Missgena Abeba
Ms Momina Mohamed Omer

CASE NUMBER: 2206425

HOME AFFAIRS REFERENCE(S): OSF2019/021728

MEMBER: Justin Meyer

DATE OF ORAL DECISION: 16 June 2023

DATE OF WRITTEN STATEMENT: 6 July 2023

PLACE OF DECISION: Melbourne

DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:

·cl 116.221 of Schedule 2 to the Regulations

In relation to the secondary applicant, the Tribunal remits the application for the visa to the Minister to consider the remaining criteria for the grant of the visa.

Statement made on 06 July 2023 at 4:19pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – debilitated from a stroke – assistance cannot reasonably be provided/obtained – other relatives – other responsibilities – community services – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 116.221

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 1 March 2022 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 18 October 2019. 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). In the present case, the applicant is seeking to satisfy the 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 (per his decision):
The applicant has failed to provide any current documents to demonstrate that services from community health services and hospital and nursing services in Australia cannot be reasonably obtained.

In the absence of any current supporting documents of what government services and external services are available from any Australian welfare organisation, doctor or health professional, hospital, nursing home or other community service, I do not find that it has been demonstrated that subregulation 1.15AA (1)(e)(ii) has been met.

As the requirement of subregulation 1.15AA(1)(e)(ii) has not been met, I further find that regulation 1.15AA (1)(e) within the definition of ‘carer’ is not met.

As I have determined that regulation 1.15AA (1)(e)(ii) within the definition of ‘carer’ at Regulation 1.15AA is not met at time of decision on this application, I also find that Clause 116.221 of Schedule 2 of the regulations…

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 Misgena (Migration)

Details

AGLC: Misgena (Migration) [2023] AATA 2050
Case: [2023] AATA 2050
Decision Date: 16 June 2023

CaseChat Overview and Summary

The applicant, Misgena, sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerning her application for an Other Family (Migrant) (Class BO) visa, Subclass 116 (Carer). The dispute centred on whether the applicant's sponsor, her son, had satisfied the criteria for the visa, specifically regarding the inability of the applicant to obtain or receive the necessary assistance from other relatives or from community services in her home country. The matter came before Justice Meyer of the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the delegate's decision to refuse the visa application was affected by jurisdictional error. This required the court to consider whether the delegate had properly assessed the evidence presented regarding the availability of assistance to the applicant in her home country, and whether the delegate had given adequate reasons for concluding that such assistance was reasonably available, thereby failing to meet the visa criterion.

Justice Meyer found that the delegate's assessment of the availability of assistance from other relatives and community services was flawed. The delegate had failed to adequately consider the evidence of the applicant's other relatives' responsibilities and the limitations of community services in the applicant's specific location. Consequently, the delegate's conclusion that the applicant could reasonably obtain assistance was not supported by a proper evaluation of the evidence. The court determined that this failure constituted a jurisdictional error. The decision of the Minister was set aside and remitted to the Minister for reconsideration according to law.

Orders