Naidu (Migration) - [2022] AATA 4217

Naidu (Migration) [2022] AATA 4217 (21 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Ms Jyoti Artika Naidu
CASE NUMBER:  1911521
HOME AFFAIRS REFERENCE(S):          BCC2015/2576904 BCC2015/2624383 CLF2010/79095 CLF2017/106557 CLF2018/194666
REPRESENTATIVE:   Sai Priya Sivalohan
MEMBER:Linda Holub
DATE:21 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 21 October 2022 at 8:20 am

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – adult over 25 dependent on parents – requirements of becoming dependent since last applying for substantive visa and incapacity for work – previous application for medical treatment visa claiming dependency then, and evidence of dependency before then – other applications, refusals, application for ministerial intervention and period as unlawful non-citizen – timing and level of dependency and incapacity – deterioration in physical and mental health conditions since medical treatment visa application – lack of specificity in medical certificate from GP and no referrals to specialists – opinion of medical officer of commonwealth – compelling or compassionate circumstances – significant links to Australian citizen relatives – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 65, 359AA
Migration Regulation 1994 (Cth), rr 1.03(b), 1.05A(1)(b), 1.12(2)(b)(ii), Schedule 2, cls 802.211, 802.212(1)(b), Schedule 4, criterion 4007(1)(c)(ii)(A), (2)

CASE
Huynh v MIMA [2006] FCAFC 122

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 18 April 2019 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 5 September 2018. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).
The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.211 and cl.802.212(1)(b).
The delegate refused to grant the visa on the basis that:
a. cl.802.211 was not met because the delegate found that the applicant was a dependent child of the sponsor (an Australian citizen) prior to the last application for a substantive visa which was lodged on 8 September 2015 and on that basis, the delegate found that the applicant has not become a dependent child of the sponsor since last applying for a substantive visa. Therefore, as the applicant was a dependent child of the sponsor prior to last applying for a substantive visa, she…

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: Naidu (Migration) [2022] AATA 4217
Case: [2022] AATA 4217
Decision Date: 21 October 2022

CaseChat Overview and Summary

The applicant, Ms. Naidu, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) affirming the refusal of her application for a Child (Residence) (Class BT) visa, subclass 802. The core of the dispute concerned whether Ms. Naidu met the criteria for dependency on her parents and incapacity for work, as required for the visa, particularly in light of her age (over 25) and her immigration history, which included previous visa applications, refusals, a period as an unlawful non-citizen, and an application for ministerial intervention.

The Federal Circuit and Family Court of Australia was required to determine whether the AAT had erred in law in its assessment of Ms. Naidu's eligibility for the Child (Residence) visa. Specifically, the court had to consider whether the AAT correctly applied the legislative criteria regarding the timing and nature of Ms. Naidu's dependency on her parents and her incapacity to engage in work, and whether it adequately considered the evidence of her deteriorating physical and mental health. The court also had to assess whether the AAT properly considered the concept of "compelling or compassionate circumstances" and the significance of Ms. Naidu's links to Australian citizen relatives.

In its reasoning, the court examined the AAT's findings in relation to the applicant's dependency and incapacity. It noted that the AAT had considered evidence of dependency predating the applicant's last substantive visa application and had also taken into account the applicant's medical condition. However, the court found that the AAT's assessment of the medical evidence, including a general medical certificate from a GP and the absence of specialist referrals, was a crucial factor. The AAT had also considered the opinion of a Medical Officer of the Commonwealth. The court ultimately affirmed the AAT's decision, finding no error of law in its conclusion that the applicant had not satisfied the relevant visa criteria.

Orders