CYW21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1084

CYW21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1084

The extension of time was granted because the delay was relatively short, the proposed grounds had some merit and the Minister identified no specific prejudice, despite a weak explanation for the delay. The appeal was dismissed because reg 1.15AA(1)(e) required the Tribunal to have regard to the nature and extent of the applicant's mother's care needs, but did not require express findings on those matters. The Tribunal had referred to and considered the Carer Visa Assessment Certificate, was aware of the mother's care needs, and engaged with those needs when assessing whether relatives and services could reasonably provide assistance. No jurisdictional error by the Tribunal, and no error...

Jurisdiction
Australia
Judgment Date
10 September 2021
Procedural Posture
Migration Appeal From the Federal Circuit Court of Australia Concerning Refusal of Other Family (residence) (class Bu) Visas / Application for Extension of Time to File a Notice of Appeal and Appeal
Outcome
Application for extension of time granted; appeal dismissed; applicants ordered to pay the first respondent's costs, to be fixed by lump sum.
Legal Topics
['other Family (residence) (class Bu) Visa' 'carer Visa Criteria' 'migration Regulations 1994 (cth) Reg 1.15 Aa' 'jurisdictional Error' 'extension of Time to Appeal' 'judicial Review of Administrative Appeals Tribunal Decision']
['migration Law' 'administrative Law'] ['other Family (residence) (class Bu) Visa' 'carer Visa Criteria' 'migration Regulations 1994 (cth) Reg 1.15 Aa' 'jurisdictional Error' 'extension of Time to Appeal' 'judicial Review of Administrative Appeals Tribunal Decision']

Case Brief

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Procedural Posture

Migration Appeal From the Federal Circuit Court of Australia Concerning Refusal of Other Family (residence) (class Bu) Visas / Application for Extension of Time to File a Notice of Appeal and Appeal

Legal Issues

  1. 1 ['Whether an extension of time should be granted to file a notice of appeal from the Federal Circuit Court judgment.' "Whether the Tribunal fell into jurisdictional error in considering reg 1.15AA(1)(e) by failing to consider the nature and extent of the applicant's mother's care requirements." "Whether reg 1.15AA required the Tribunal to make express findings as to the nature and extent of the sponsor's care requirements." 'Whether the primary judge erred in finding that the Tribunal complied with reg 1.15AA(1)(e).']

Ratio Decidendi

The extension of time was granted because the delay was relatively short, the proposed grounds had some merit and the Minister identified no specific prejudice, despite a weak explanation for the delay. The appeal was dismissed because reg 1.15AA(1)(e) required the Tribunal to have regard to the nature and extent of the applicant's mother's care needs, but did not require express findings on those matters. The Tribunal had referred to and considered the Carer Visa Assessment Certificate, was aware of the mother's care needs, and engaged with those needs when assessing whether relatives and services could reasonably provide assistance. No jurisdictional error by the Tribunal, and no error...

Court Disposition

Application for extension of time granted; appeal dismissed; applicants ordered to pay the first respondent's costs, to be fixed by lump sum.

Orders

  • ['The applicants be referred to by pseudonyms.' 'The application for an extension of time filed on 2 February 2021 to file a notice of appeal be granted.' 'Within seven days, the applicants file and serve a notice of appeal substantially in the form of annexure "DY4" to the affidavit of Dickran Yakenian dated 13...