Sheikh (Migration) - [2018] AATA 1056

Sheikh (Migration) [2018] AATA 1056 (27 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Habiba Yusuf Sheikh
VISA APPLICANT:  Mr Majid Yahye Mohamed
CASE NUMBER:  1615597
DIBP REFERENCE(S):  OSF2015/051295
MEMBER:Kira Raif
DATE:27 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:
·Public Interest Criterion 4020 for the purposes of cl.117.223 of Schedule 2 to the Regulations.

Statement made on 27 March 2018 at 10:16am

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – Death Certificates – Parents deceased – PIC 4020 waived – Compelling circumstances – Immediate family in Australia – Ongoing medical care of family member – Close connection between visa applicant and review applicant
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994 Schedule 2 cl 117.223 Schedule 4 Criteria 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
Mudiyanselage v MIAC [2013] FCA 266
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50

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 Immigration on 17 July 2016 to refuse to grant the applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant is a national of Somalia. He applied for the visa on 30 August 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.117.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the visa applicant did not meet Public Interest Criterion (PIC) 4020. The sponsor (the review applicant) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 27 March 2018 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Relevant law
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.117.223 for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was…

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 Sheikh (Migration)

Details

AGLC: Sheikh (Migration) [2018] AATA 1056
Case: [2018] AATA 1056
Decision Date: 27 March 2018

CaseChat Overview and Summary

The applicant, Sheikh, sought judicial review of a decision by the Migration Review Tribunal concerning an application for a Subclass 117 (Orphan Relative) visa. The core of the dispute revolved around whether the applicant met Public Interest Criterion (PIC) 4020, which typically requires the provision of correct information and documents.

The primary legal issue before the Court was whether the Tribunal had erred in its assessment of PIC 4020 in the context of an Orphan Relative visa application. Specifically, the Court needed to determine if the Tribunal correctly applied the criteria for waiving PIC 4020, considering the applicant's circumstances, including the death certificates of her parents and the presence of immediate family in Australia requiring ongoing medical care.

The Court found that the Tribunal had erred in its assessment of PIC 4020. It reasoned that the applicant had demonstrated compelling circumstances that warranted a waiver of PIC 4020, particularly given the close connection between the visa applicant and the review applicant, and the need for the applicant's presence to provide ongoing medical care to a family member in Australia. The Court concluded that the applicant did satisfy PIC 4020 for the purposes of clause 117.223 of Schedule 2 to the Regulations.

Consequently, the Tribunal's decision was set aside, and the application for the Subclass 117 (Orphan Relative) visa was remitted for reconsideration with a direction that the applicant meets PIC 4020 for the purposes of clause 117.223.

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

On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.117.223.DECISION The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:·Public Interest Criterion 4020 for the purposes of cl.117.223 of Schedule 2 to the Regulations.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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