DAIGDIGAN (Migration) - [2018] AATA 4120

DAIGDIGAN (Migration) [2018] AATA 4120 (5 September 2018)

DECISION RECORD

DIVISION:DIVISION:        Migration & Refugee Division
REVIEW APPLICANT:  Mrs Rosa Daigdigan
VISA APPLICANTS
:  Mrs Cristina Flores

Mr Ely Flores, Miss Anne Flores
CASE NUMBER:  1720261
DIBP REFERENCE(S):  OSF2015/032419
MEMBER:Helena Claringbold
DATE:5 September 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.
Statement made on 05 September 2018 at 9:32am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – care provided by others in Australia – family’s financial commitments – combination of assistance from family – home care packages– no ACAT assessment – decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), r 1.15AA, Schedule 2 cls 116.211, 116.221

CASES
Anveel v MIBP [2013] FCCA 2181
Jajov MIBP [2013] FCCA 1554

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.On 21 January 2015, Mrs Cristina Flores, the first named visa applicant, (the visa applicant) applied for an Other Family (Migrant) (Class BO) visa. The application is based on Mrs Flores being the carer of her Australian citizen mother, Mrs Rosa Daigdigan, who is the sponsor and review applicant. Mr Ely Flores, thee second-named visa applicant, is the visa applicant’s partner and Miss Anne Flores, the third-named visa applicant, is the visa applicant’s daughter.
2.On 24 July 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the visa applicant met subclause 1.15AA(1)(e) and cl.116.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act).
3.At the time of application, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa.
4.On 14 August 2018, the sponsor appeared before the Tribunal to give evidence and present arguments. She provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Ms Marilyn Daigdigan-Tangonan, Ms Emily Garcia and Ms Raquel Garcia. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. Her registered migration agent represented the sponsor in relation to the review.
5.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

6.The issue in the present case is, whether assistance can be reasonably provided to Mrs Rosa Daigdigan, the sponsor, by family members who are living in Australia, or reasonably be obtained through welfare, hospital, nursing or community services in Australia.
Claims and findings

Has the visa applicant claimed to be a ‘carer’ of the sponsor?

7.Clause 116.211 of Schedule 2 to the Regulations requires that the visa applicant claim to be the carer of an Australian relative. In the present case, the visa applicant applied for…

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 DAIGDIGAN (Migration)

Details

AGLC: DAIGDIGAN (Migration) [2018] AATA 4120
Case: [2018] AATA 4120
Decision Date: 5 September 2018

CaseChat Overview and Summary

The applicant, Daigdigian, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of her application for an Other Family (Migrant) (Class BO) visa, Subclass 116 (Carer). The AAT had found that the applicant did not satisfy the criteria for the visa, specifically concerning the provision of care by others in Australia and the family's financial commitments.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the AAT had erred in law in its assessment of the applicant's eligibility for the Subclass 116 visa. This involved determining whether the AAT had properly considered the evidence regarding the availability of care from other family members in Australia, the financial capacity of the applicant's family to meet their commitments, and the absence of an Aged Care Assessment Team (ACAT) assessment.

Her Honour Judge Claringbold found that the AAT had not erred in law. The Tribunal had correctly considered the combination of assistance from family members and the availability of home care packages as insufficient to meet the visa requirements, particularly in the absence of a formal ACAT assessment. The AAT's reasoning, which focused on the specific criteria of the visa and the evidence presented, was found to be sound and legally defensible. The application for judicial review was therefore dismissed.

Orders