El Cheikh (Migration) [2020] AATA 3051 (23 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mrs Rajaa El Cheikh
CASE NUMBER: 1811844
HOME AFFAIRS REFERENCE(S): CLF2014/76469
MEMBER:Peter Smith
DATE:23 July 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration to determine if the following criteria is met:
·cl.836.212 of Schedule 2 to the Regulations;
·cl.836.221 of Schedule 2 to the Regulations
Statement made on 23 July 2020 at 11:07am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – updated carer visa assessment certificate provided to tribunal – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 15AA(1)(b)(i), (ii), Schedule 2, cls 836.212, 836.221
CASES
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 17 April 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 26 May 2014. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations.
The delegate refused to grant the visa on the basis that cl.836.221 of Schedule 2 to the Regulations because the requirements of reg.1.15AA(1)(b)(i) and (ii) of the Regulations were not met. The delegate found that the Carer Visa Assessment Certificate (CVAC) provided at the time of application was no longer valid. Despite requests from the delegate to the applicant to provide an updated CVAC one was not provided.
As the applicant has now provided an updated CVAC, the Tribunal has concluded that the appropriate course is to remit the application for the visa to the Minister to reconsider whether the applicant meets the criteria for the grant of a Subclass 836 (Carer) visa under cl.836.212 and cl.836.221.
DECISION
The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration to determine if the following criteria is met:
·cl.836.212 of Schedule 2 to the Regulations;
·cl.836.221 of Schedule 2 to the Regulations
Peter Smith
Member
- AGLC
- El Cheikh (Migration) [2020] AATA 3051
- Case
- [2020] AATA 3051
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether the applicant met the criteria for the grant of the Subclass 836 visa, as stipulated by clauses 836.212 and 836.221 of Schedule 2 to the relevant regulations. This determination was complicated by the applicant's subsequent provision of an updated carer visa assessment certificate.
The Tribunal reasoned that the provision of the updated carer visa assessment certificate necessitated a reconsideration of the applicant's eligibility. Consequently, the Tribunal concluded that the appropriate course of action was to remit the application back to the Minister for reconsideration of whether the applicant met the specified visa criteria. The Tribunal therefore remitted the application for reconsideration by the Minister.
Orders
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Background
Background to the litigation
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Evidence Before The Court
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Decision
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Ratio Decidendi
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