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Visa Assessment Certificate – sponsor’s own medical needs – Australian relatives geographically distant – NDIS funding withdrawn – high level of personal care – decision under review remitted 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

1. 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).

2. 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.

3. 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. 

4. 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.

5. The sponsor provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

6. 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 assistance of an interpreter in the Cebuano and English languages.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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

10. 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'.

11. 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.

12. 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.

13. 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.  

14. 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.

15. 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.

16. At the time of the hearing, no more recent CVAC had been submitted to the Tribunal.

17. At the time of this decision Mrs Ross continues to have primary responsibility for providing Mr Ross with personal care and support.

18. The Tribunal has had regard to documentary evidence on the Department and Tribunal files, including the decision record and the submissions and supporting evidence provided.

    Whether the applicant has claimed to be the ‘carer’

19. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. The definition of ‘relative’ is given in reg.1.03 of the Regulations and, relevantly in this case, is a ‘close relative’, also defined, which includes a parent.  In the present case, the visa application was made on the basis that the applicant is the resident’s sister. 

    Whether the applicant is a carer – reg.1.15AA

20. Clause 836.221 requires, at the time of decision, that the applicant is a carer of the Australian relative (or ‘the resident’).  The term ‘carer’ is defined in reg 1.15AA of the Regulations which is referred to above and is set out in the attachment to this decision.

21. In the primary decision, the delegate was satisfied that the resident, Mrs Ross,  is an Australian citizen usually resident in Australia. Accordingly, this matter is not in issue and the Tribunal is satisfied, from the evidence before it, that Mrs. Ross is an Australian citizen usually resident in Victoria, Australia.

22. The Tribunal has considered whether the applicant meets the requirements of each of sub-clauses reg.1.15AA(1)(a)-(f), reg.1.15AA(2) and reg.1.15AA(3).

    Applicant is a relative of the resident – reg.1.15AA(1)(a)

23. In the present case, the applicant is Mrs. Ross’s brother. Therefore, as the applicant is the brother of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of reg 1.03 and meets the requirements of reg 1.15AA(1)(a).

    Certification – reg 1.15AA(1)(b) and reg 1.15AA(2)

24. Regulation 1.15AA(1)(b) requires that a certificate, generally referred to as a Carer Visa Assessment Certificate (CVAC) which meets the requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the CVAC; and that because of the condition, the person has and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.

25. For a certificate to meet reg 1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 14/085 or issued by a specified health provider in relation to a review of such an opinion.

26. A BUPA Carer Visa Assessment Certificate dated 19 July 2016 ( the CVAC) was submitted to the Tribunal. IMMI 14/085 specifies Bupa Australia Health Pty Ltd trading as Bupa Medical Visa Services as the health service provider. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2).

27. The certificate specifies that:

    ·the resident has a medical condition causing physical, intellectual or sensory impairment of his ability to attend to the practical aspects of daily life;

    ·because of Mr. Ross’s medical condition, he has a need for direct assistance in attending to the practical aspects of daily life;

    ·the impairment has an impairment table rating specified in the certificate; and

    ·because of the medical condition, Mr. Ross has and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life.

28. Regulation 1.15AA(3) stipulates that the opinion in a certificate from the health service provider is to be taken as correct for the purposes of whether or not the applicant satisfies the impairment criterion.

29. The Tribunal finds that the certificate provided does meet the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv).

30. Accordingly, the requirements of reg 1.15AA(1)(b) are met.

    Residency status of person with medical condition – reg 1.15AA(1)(ba)

31. Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen. In the primary decision, the fact that Mr. Ross is an Australian citizen usually resident in Australia was not in issue.

32. In the present case, the person with the medical condition is an Australian citizen whose citizenship is accepted by the Department.

33. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

    Impairment rating – reg 1.15AA(1)(c)

34. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI 17/126, which specifies an impairment rating of 30. In the present case, the impairment rating specified in the CVAC is 40. This rating exceeds the impairment rating specified by the Minister in the relevant instrument.

35. The requirements of reg.1.15AA(1)(c) are met.

    Resident’s need for assistance, not the subject of the certificate -  reg 1.15AA(1)(d)

36. Where the person to whom the CVAC relates is not the Australian relative (resident), but a member of their family unit, reg 1.15AA(1)(d) applies. This states,

    if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv)

37. The Tribunal finds that reg.1.15AA(1)(d) applies in this case.

38. In her testimony Mrs Ross told the Tribunal that she suffers from high blood pressure, sleep apnoea and diabetes. She had back surgery (laminectomy) in 2018 and cannot lift heavy things.  This makes it difficult for her to care for her husband, particularly at night. At the Tribunal’s request, Mrs. Ross submitted medical evidence post-hearing in support of her claims. A letter from her general practitioner in Kerang, dated 23 March 2023 describes that she suffers from hypertension, asthma, disc prolapse, sleep apnoea, diabetes melitus, gastritis, hiatus hernia and tendinopathy. Furthermore she underwent back surgery (laminectomy) in 2019. The doctor writes, “Because of those conditions she is unable to care for her husband.”

39. The Tribunal found both Mr and Mrs Ross to be genuine and credible in their testimony. In light of which, and corroborated by her own medical report, the Tribunal is satisfied that as the resident, Mrs Ross has a permanent or long-term need for assistance in providing care to Mr. Ross. The requirements of reg.1.15AA(1)(d) are met.

    Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)

40. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.

41. The nature of the assistance required is described in the CVAC.  The Tribunal has considered why Mr. Ross’s Australian adult relatives cannot provide the care and assistance he requires. Care may be provided collectively by more than one relative. In Jajo v MIBP [2013] FCCA 1554 at [55], the Court held that reg 1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person.

42. The delegate noted that Mrs. Ross has four siblings living in Australia:

    ·Juliet C Burt (sister)

    ·Gerry Ceballos (brother)

    ·Teofane Vernard R Ceballos (brother)

    ·Russell Ceballos (brother)

43. The delegate notes that statutory declarations from Mr. and Mrs. Ross and from Messrs. Teofane and Russell Ceballos. The decision record notes that at the time of decision, no statutory declarations from Juliet Burt or Gerry Ceballos had been submitted in evidence. Ultimately the delegate was not satisfied that some of all of the resident's relatives were unable to provide the assistance she requires care for Mr Ross either individually or on a collective basis.

44. Following the refusal decision on 19 July 2018, Mr. Ross wrote a detailed letter dated 7 August 2018 formally disputing the delegate’s decision and responding to each of the limbs in Regulation 1.15AA. He elaborates on the reasons why none of his or Mrs. Ross’ relatives in Australia cannot reasonably be expected to assist Mrs. Ross in her care for him.  He states that all his own relatives live in Western Australia, as does Gerry Ceballos and therefore cannot reasonably be expected to assist Mrs. Ross in her care for him.  In regard to Mrs. Ross’ siblings, he writes:

    ·Russell Ceballos  - he and his wife own and manage a takeaway business open 8 days a week. They have six children, three of whom remain under-age at the time of this decision. The three older children are now young adults aged between 20 – 25 years. In his own statutory declaration dated 16 August 2018, Mr. Ceballos states that his three older children are now busy with their own lives, completing apprenticeships, university studies, part-time work and are reluctant to in the care of Mr. Ross.

    ·At the time of his statutory declaration, Mr. Ceballos and his family lived in Sebastopol, more than two hours drive from the Ross’ in Kerang.  He and his family continue to live a great distance from Kerang, making it impractical for lending assistance to Mrs Ross on a regular basis.

    ·Juliet Burt  -  in his letter Mr. Ross writes that they have been estranged from Ms Burt for over 15 years. They would not expect or be comfortable receiving, any support from her.  During her testimony, Mrs. Ross mentioned that they have only recently resumed occasional contact with Ms. Burt, however she is 71 years of age and living in Melbourne, over three hours’ drive from Kerang.

    ·Teofane Ceballos – lives with his family in the Gold Coast, Queensland. Again, they are all too far to be of practical assistance to Mrs. Ross. Furthermore, he has been fortunate to be able to retire early and now divides his time between the Philippines and his home on the Gold Coast.    

45. The Tribunal accepts the submissions that the family and relatives of both Mr. and Mrs. Ross are not reasonably able to assist Mrs. Ross in her care for Mr. Ross, for the reasons mentioned above.

46. The Tribunal is mindful that whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 at [61]–[62]. When making such assessment, consideration should also be given to the nature of care required by the person needing the care: at [61].

47. For the reasons set out in the documentary evidence and discussed at the hearing it is submitted that it would be unreasonable to expect the family members in Australia to provide care on an individual or roster-based arrangement in light of their respective commitments balanced against the substantially high care needs of the resident.  Having regard to all of the evidence, the Tribunal accepts this submission.

48. With respect to reg 1.15AA(1)(e)(ii), Mr Ross states in his 2018 letter that he has approved funding from both the National Disability Insurance Scheme (NDIS) and from Victoria’s Transport Accident Commission (TAC), however the total funding is insufficient to meet his 24/7 care needs. Furthermore he told the Tribunal that at his most recent interview with NDIS, some of his funding was withdrawn – a decision he intends to contest.

49. In his testimony Mr. Ross stated that he had stayed briefly in respite care near Geelong, before he and his wife moved to Kerang. He said candidly that it was not a pleasant experience for him as despite his severe physical condition, his mental cognition is unaffected and he felt ill-suited to a residence that was catering for palliative care patients.  At any rate, Mrs. Ross visited him daily at respite care so still played a role in his care. He also testified that now living in Kerang the closest respite care residence would have been in Pyramid Hill, however that closed down two years ago. His closest current option is in Swan Hill which is over an hour’s drive from Kerang.

50. The Tribunal has taken into account the  wishes of both Mr. and Mrs. Ross.  However, the test is whether the required care can be reasonably obtained and while cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, a person’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34]. Nevertheless the Tribunal accepts the submission that the notion of “care” and the support provided by carers should be looked at holistically in light of the resident’s overall personal circumstances and medical needs.

51. These claims are supported by, updated medical information submitted to the Tribunal on 15 March 2022 and referred to earlier.  The Tribunal has no reason to doubt the veracity of this evidence.

52. The applicant attended the hearing by video call. He stated that he had lived with the Ross’s during his time in Australia between June 2016 to September 2020. During this time he worked part-time (approximately 20 hours per week) and otherwise assisted Mrs. Ross to care for Mr. Ross. He assisted by driving them to medical appointments, cooking, doing housework and other chores as needed. Both Mr. and Mrs. Ross corroborated these claims. Mr. Ross stating that the applicant was a trusted relative with whom he felt entirely comfortable, Mrs. Ross stated that the applicant was of particular importance to her by tending to Mr. Ross’ night-time needs, which allowed her much-needed respite from her tending to him during the day.

1. Given that Mr. Ross requires a ‘live in’ carer to tend to all of his personal hygiene needs - being of a high level of personal and intimate care ­ - the Tribunal accepts as reasonable that Mr. Ross should wish to have a full-time carer who is a close family member with whom he is able to feel comfortable.  The Tribunal also places positive weight on the fact that the applicant has in fact been providing this high level full-time care to him during the applicant’s last period onshore between June 2016 to September 2020.

2. Whilst there is little documentary evidence of engagement with various respite care facilities that might be currently available to Mr. Ross, the Tribunal has no reason to doubt the testimony of both Mr. and Mrs. Ross, who, as stated earlier, the Tribunal found to be truthful and credible witnesses. From a holistic point of view and having regard to the high level of personal and intimate care that he requires, the Tribunal accepts that that there is no residential aged care or other home that could provide the necessary level and nature of care and support that Mr. Ross requires on a daily basis – and which his brother-in-law, the applicant, had contributed to providing during the four years of his previous time onshore.

3. Having reviewed and considered all the evidence that has been submitted, the Tribunal is satisfied that the high level of care that Mr. Ross requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

4. Accordingly, the Tribunal finds that, at the time of this decision, reg 1.15AA(1)(e)(ii) is met.

5. In the circumstances of this case, the Tribunal is satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of reg 1.15AA(1)(e) are met.

   Willing and able – reg 1.15AA(1)(f)

6. Regulation 1.15AA(1)(f) requires that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed.

7. Having regard to his signed statement of 9 August 2018 and his testimony during the hearing, the Tribunal is satisfied that the applicant is will and able to provide substantial and continuing assistance of the kind Mr Ross requires, while living with the couple in the same arrangement as when  he was last in Australia..

8. The Tribunal  accepts as genuine his intention to support his sister, Mrs. Ross as the primary carer for Mr. Ross for as long as required; it is satisfied that the applicant and Mrs. Ross, the resident, have a particularly close sibling bond and he is therefore a suitable and fit person to assist her to provide such high-level and ‘round-the-clock’ care to his brother-in-law, Mr. Ross.

9. Therefore, the applicant is willing and able to provide to the Australian resident substantial and continuing assistance of the kind needed and meets the requirements of reg.1.15AA(1)(f).

   Conclusion

10. On the basis of the above findings, the applicant meets the requirements of reg.1.15AA and is a carer of the person referred to in cl.836.212, an Australian relative, and therefore cl.836.221 is met.

11. 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

12. 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 Conwell
    Member