Ceballos (Migration) - [2023] AATA 884

Ceballos (Migration) [2023] AATA 884 (25 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Vencie Roma Ceballos
CASE NUMBER:  1821222
HOME AFFAIRS REFERENCE(S):          CLF2016/52186
MEMBER:Stephen Conwell
DATE:25 March 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·cl 836.221 of Schedule 2 to the Regulations.

Statement made on 25 March 2023 at 1:31pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – care reasonably obtained from welfare, hospital, nursing or community services – Carer Visa Assessment Certificate – sponsor’s own medical needs – Australian relatives geographically distant – NDIS funding withdrawn – high level of personal care – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 836.212, 836.221; rr 1.03, 1.15
CASES
Anveel v MIBP [2013] FCCA 2181
Hon Anh Vuong v MIAC [2013] FCCA 274
Jajo v MIBP [2013] FCCA 1554
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 19 July 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 August 2016. 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 (Cth) (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. Relevantly to this matter, the primary criteria to be met include cl 836.221, which requires that the applicant is carer, as defined in r.1.15AA(1) of the Regulations.
The delegate refused to grant the visa on the basis that cl 836.221 was not met because the delegate found the applicant did not meet the requirements in reg 1.15AA(1)(e)(i) and (ii) because sufficient evidence had not been provided to demonstrate that assistance could not reasonably be provided by any other relatives, or reasonably obtained from welfare, hospital, nursing or community services in Australia.
The applicant is sponsored by his sister, Mrs. Imelda Ross. She is married to Mr. Shane Anthony Ross, who is the person with a medical condition, requiring a carer.
The sponsor provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.
Mr Ross and his wife (the sponsor) participated in the hearing by video on 21 March 2023 to give evidence and present arguments. The applicant also gave evidence by video from The Philippines. The hearing was conducted with the…

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 Ceballos (Migration)

Details

AGLC: Ceballos (Migration) [2023] AATA 884
Case: [2023] AATA 884
Decision Date: 25 March 2023

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to be recognised as a carer for Mr Shane Anthony Ross, an Australian citizen, who resides in Kerang, Victoria, with his wife, Mrs Imelda Roma Ross. The delegate had refused the visa on the grounds that the applicant did not satisfy the requirements of regulation 1.15AA(1)(e)(i) and (ii) of the Migration Regulations 1994, which relate to the inability of other relatives to provide assistance and the inability to obtain assistance from community services. The Administrative Appeals Tribunal (the Tribunal) considered the matter on review.

The Tribunal was required to determine whether the applicant met the definition of a 'carer' as defined in regulation 1.15AA of the Regulations, specifically concerning the availability of assistance from other relatives and community services. The Tribunal also considered the necessity of a Carer Visa Assessment Certificate (CVAC) and updated medical information regarding the resident's health condition, Parkinson's disease, and his need for a high level of personal care.

The Tribunal noted that the applicant's eligibility as a carer was contingent on the inability of other Australian relatives to provide the necessary assistance and the unavailability of such assistance from welfare, hospital, nursing, or community services. While updated medical information regarding Mr Ross's condition and care needs had been provided, a recent CVAC had not been submitted to the Tribunal. The Tribunal acknowledged that the last CVAC was issued in 2016 and that an updated certificate would assist in assessing the application. Given the circumstances, including the postponement of a previous hearing due to the lack of updated documentation, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for the Subclass 836 (Carer) visa for reconsideration by the Minister, with a direction that criterion 836.221 of Schedule 2 to the Regulations be considered met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is the same substantive issue on which the visa was refused. At the time of decision, the applicant must be a ‘carer’ of a person referred to in cl.836.212. ‘carer’ is defined in r.1.15AA of the Regulations. The term ‘carer’ is defined in reg 1.15AA(1)(a)–(f), (2) and (3) of the Regulations which is set out in the attachment to this Decision. The delegate was not satisfied that the applicant met:·reg.1.15AA(1)(e)(i) – the assistance cannot reasonably be provided by any other relative of the resident (as defined) who is an Australian citizen or permanent resident; or·reg.1.15AA(1)(e)(ii) – the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.Background In the present case, the visa application was made on the basis that of the applicant providing assistance to his sponsor, Mrs. Imelda Roma Ross to provide care to her husband, Mr Shane Anthony Ross, an Australian citizen. (the resident). For the purposes of the application, the delegate found Mrs. Imelda Ross to be the sponsor and also the 'resident'. Mr. Ross is a 61-year-old living in his own home with his wife in Kerang, a rural town on the in northern Victoria, some 280 kilometres north-west of Melbourne. He has a complex medical history and health background and has been diagnosed with Parkinson’s disease. On 29 July 2021, the Tribunal wrote to the resident pursuant to s.359(1) of the Act noting that it is a requirement for the grant of that visa that, at the time when the decision is made, the applicant is a carer of another person. To meet the definition of the term 'Carer', contained in regulation 1.15AA, the applicant must provide a Carer Visa Assessment Certificate (CVAC) . The Tribunal noted that as the last CVAC was issued some time ago in 2016, it would assist the Tribunal if an updated Certificate would be obtained. On 29 October 2022, Mr. Ross wrote to Tribunal confirming that he wished the merits review to proceed and he intended to obtain an updated CVAC in support of the application. The matter was set down for hearing on 28 February 2023, however it was postponed by the Presiding Member in fairness to the resident as no recent CVAC nor updated medical history in respect of the resident was before the Tribunal at that time. On 15 March 2022, Mr Ross submitted updated medical information to the Tribunal in respect of his condition. This information includes:· letter dated 17 June 2022 from Echuca Regional Health which provides physiotherapy services to him;· letter dated 2 September 2022 from his physiologist, recommending a home exercise program for Mr. Ross;· a continence assessment dated 24 February 2023;· a Functional Capacity Assessment prepared by Echuca Regional Health in January 2023. At the time of the hearing, no more recent CVAC had been submitted to the Tribunal.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.DECISION The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:·cl 836.221 of Schedule 2 to the Regulations.Stephen ConwellMember

Ratio Decidendi

Legal Principle Established

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