Selwanis (Migration) - [2024] AATA 2671

Selwanis (Migration) [2024] AATA 2671 (1 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Dolagy Gozaif Haleem Selwanis
Mr Morgos Morad Diryas Mina
Mr Abanob Morgos Murad Diryas
Mr Arsani Morgos Murad Diryas
REPRESENTATIVE:  Ms Alison Valerie Saunders
CASE NUMBER:  2407719
HOME AFFAIRS REFERENCE(S):          CLF2019/16764
MEMBER:Kira Raif
DATE:1 July 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 01 July 2024 at 6:12pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – health criteria – disease or condition likely to require health care or community services – secondary applicant young adult child – opinion of medical officer of commonwealth taken as correct – consent to decision without hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.12, 2.25A(3), Schedule 2, cl 836.224, Schedule 4, criterion 4005(1)(c)
CASES
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182
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 21 March 2024 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are national of Sudan. They applied for the visas on 2 July 2018. The application was initially refused in May 2019 and remitted by the Tribunal in May 2023. The delegate again refused to grant the visas in March 2024 on the basis that the third named applicant (now referred to as the applicant) did not satisfy cl 836.332 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met. The applicants seek review of the delegate’s decision.
On 17 May 2024 the Tribunal wrote to the review applicants by letter addressed to their representative, advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicants to give oral evidence and present arguments at a hearing on 3 July 2024. On 27 June 2024 the Tribunal was advised in writing that the review applicants did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it. This advice was from the first named review applicant. This matter has therefore been determined on the evidence available to the Tribunal.
Relevant law
Clause 836.224 requires each member of the family unit of the [primary] applicant to satisfy the public interest criterion 4005. The term ‘member of the family unit’ is defined in r. 1.12 and, relevantly, includes a…

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 Selwanis (Migration)

Details

AGLC: Selwanis (Migration) [2024] AATA 2671
Case: [2024] AATA 2671
Decision Date: 1 July 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the application of Selwanis and other family members for Other Family (Residence) (Class BU) visas, specifically the Subclass 836 (Carer) visa. The dispute centred on whether the applicants met the health criteria for the visa, as a medical officer of the Commonwealth had formed an opinion that a secondary applicant, a young adult child, had a disease or condition likely to require health care or community services. The applicants had consented to a decision being made without a hearing.

The primary legal issue before the Tribunal was whether the applicants had satisfied the requirements of Public Interest Criterion (PIC) 4005, which relates to health. Specifically, the Tribunal had to determine if the opinion of the medical officer of the Commonwealth regarding the secondary applicant's health condition was to be taken as correct, and if this prevented the grant of the visa.

The Tribunal reasoned that as the secondary applicant, who was a member of the primary applicant's family unit and an applicant for the visa himself, had not satisfied PIC 4005, the visa could not be granted. The Tribunal took the opinion of the medical officer of the Commonwealth as correct, as stipulated by the relevant migration regulations. Consequently, the Tribunal affirmed the decision not to grant the Other Family (Residence) (Class BU) visas to the applicants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the applicant has not satisfied the requirements of PIC 4005, and he is a member of the family unit of the primary applicant and is an applicant for the visa himself, the Tribunal must affirm the decision under review.DECISION The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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