Mustafa Sultana (Migration)

[2022] AATA 293

Mustafa Sultana (Migration) [2022] AATA 293 (9 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammad Rashedul Mustafa Sultana

CASE NUMBER:  2119747

HOME AFFAIRS REFERENCE(S):          CLF2020/61052

MEMBER:Steven Griffiths

DATE:9 February 2022

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 836 visa:

·Regulation 1.15AA(1)(b); and

·cl 836.221 of Schedule 2 to the Regulations

Statement made on 09 February 2022 at 2:21pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer visa assessment certificate provided to tribunal – decision made without hearing necessary – decision under review remitted

LEGISLATION              
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.15AA(1)(b), Schedule 2, cl 836.221

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 to refuse to grant the applicant a Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 7 September 2020. The delegate refused to grant the visa on 13 December 2021.

2. The delegate made the decision on the basis that evidence of a Carer Visa Assessment Certificate for the sponsor of the visa, an Australian resident stating she required a Carer, was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

3. On 21 January 2022 the Tribunal received from BUPA Medical Visa Services a Carers Visa report, prepared by Dr. Elizabeth Gray, and dated 12 January 2022, on the sponsor of the visa, being the sister of the applicant, which provided confirmation the health conditions of the sponsor were permanent for a period of at least 2 years, with a rating of 30 attached and confirmation the carer requirements are met.

4. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   DECISION

6. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 836 visa:

   ·Regulation 1.15AA(1)(b); and

   ·cl 836.221 of Schedule 2 to the Regulations

   Steven Griffiths
   Member