1901804 (Migration)

[2021] AATA 1053

1901804 (Migration) [2021] AATA 1053 (25 March 2021)

Corrigendum

DIVISION:Migration & Refugee Division

CASE NUMBER:  1901804

MEMBER:David Crawshay

DATE OF ORAL DECISION:  25 March 2021

DATE OF DECISION:  25 March 2021

·DATE CORRIGENDUM

·SIGNED:  30 March 2021

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

Paragraph 5 should read:

For the following reasons, the Tribunal has concluded that the decision under review should be remitted for consideration.

Paragraph 28 should read:

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.836.213 of Schedule 2 to the Regulations; and
• cl.836.227 of Schedule 2 to the Regulations.

David Crawshay
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1901804

MEMBER:David Crawshay

DATE OF ORAL DECISION:  25 March 2021

DATE OF WRITTEN STATEMENT:         26 March 2021

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.836.213 of Schedule 2 to the Regulations; and

·cl.836.227 of Schedule 2 to the Regulations.

Statement made on 26 March 2021 at 9:55am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsor’s capacity to understand sponsorship obligations – mental health – carer visa assessment certificate and medical reports – diagnosis and current condition – sponsor’s mostly clear oral evidence to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA, 1.20; Schedule 1, 1123B; Schedule 2, cls 836.213, 836.227

CASE
Babar v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 10 January 2019 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 4 September 2017. 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. Relevantly to this matter, the primary criteria to be met include cl.836.213, which relate to sponsorship and provides that the applicant is sponsored by an Australian relative who has turned 18, is a settled type of citizen or permanent resident and is usually resident in Australia. Certain undertakings must be given by the sponsor which are found in r.1.20(2)(a) of the Regulations. These are that the sponsor undertakes to assist the applicant, to the extent necessary, financially and in relation to accommodation during the period of two years immediately following the grant of the visa. In this case, the sponsor is the applicant’s sister, who [has the same name as the applicant].

3. The delegate refused to grant the visa on the basis that cl.836.227 was not met because the delegate was not satisfied that the sponsor had the capacity to understand her sponsorship obligations at the time of application and was therefore not satisfied that the sponsorship was in effect at the time of making her decision.

4. The applicant appeared before the Tribunal on 14 December 2020 to give evidence and present arguments. The Tribunal also heard from the sponsor. The hearing was conducted remotely by Microsoft Teams video. The applicant was represented in relation to the review by her registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issues in the present case are whether the applicant was sponsored by the sponsor under cl.836.213 at the time of application and whether the applicant continues to be sponsored under cl.836.227 at the time of this decision.

   Were the sponsorship requirements met at the time of application?

7. Clause 836.213 requires that at the time of application the applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. For these purposes, “relative”, “Australian permanent resident” and “eligible New Zealand citizen” are defined in r.1.03 of the Regulations. At the time of application, the applicant was said to be sponsored by an Australian relative, being her sister who is an Australian citizen and who has turned 18.

8. As alluded to above, the delegate was not satisfied that the sponsor had the capacity to understand the sponsorship obligations. This finding was based in part on a report by a [Dr A] of 30 March 2017 as well as the Carer Visa Assessment Certificate (CVAC) dated 11 November 2017. The delegate concluded as follows:

   Having considered all of the evidence provided in support of the carer visa application, I am not satisfied that the sponsor has the capacity to understand hewr sponsorship obligations at time of application. Subsequently I am not satisfied that the sponsorship is in effect at time of decision. It therefore follows that the applicant is not sponsored as required by the legislation, and therefore does not satisfy clause 836.227 in Schedule 2 of the Regulations on the date I made my decision.

9. In submissions of 19 March 2021, the applicant’s representative drew the Tribunal’s attention to the case of Babar v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38 (“Babar”), a decision of the Full Court of the Federal Court. The Full Court in Babar stated as follows:

   In applying that requirement [to give the undertakings], no issue arises which involves an assessment of the capacity of the person to fulfil the undertaking if required. As already mentioned, giving the undertaking simpliciter is sufficient. [bracketed words added]

10. The representative submitted that, Babar being the preferred authority, the Tribunal should find that the giving of an undertaking is sufficient for a person to be the sponsor and no requirement exists for an assessment of that person’s capacity.

11. While the Tribunal notes and agrees with the ratio of Babar, it believes the present matter is apt to be distinguished from Babar for the simple reason that Babar was concerned with the sponsor’s capacity to be able to fulfil the undertakings under r.1.20(2)(a) and not with the sponsor’s capacity to be able to understand the undertakings given which is the issue in the present matter. There is a significant difference between the two capacities.

12. Thus, while the Tribunal does not need to make an assessment of the sponsor’s capacity to fulfil the sponsorship undertakings, it believes it is required in the present matter, as it is in all matters where sponsorship undertakings are given, to be satisfied that the sponsor had the capacity to be able to understand the undertakings, and that this involves a consideration of the sponsor’s mental capacity as at the date of application. Indeed, this is exactly what the delegate did when the matter was before the Department and, although the Tribunal has come to a different decision from that given by the delegate, it is for factual reasons based on the provision of further evidence and not because the delegate erred in her understanding of the question that needed to be answered.

13. Indeed, the delegate relied heavily on a report of 30 March 2017 from a physician and geriatrician, [Dr A], as well as a Carer Visa Assessment Certificate (CVAC) in respect of the sponsor dated 11 July 2017. [Dr A] found that the sponsor had been suffering from bipolar affective disorder and Alzheimer’s disease, presented with increased short-term memory impairment and increased confusion and was mentally slow. A mini mental state examination was conducted where the sponsor scored 12 out of 30. Sections of [Dr A]’s report were incorporated almost verbatim in the CVAC, indicating that it relied in large part on his findings. The applicant rated 20 points for “Alzheimer disease affecting brain function” and 30 points for “Bipolar affective disorder affecting mental health function”.

14. [Dr A] submitted another report dated 13 December 2018. While the report listed Alzheimer’s disease as a cognitive or medical condition suffered by the sponsor, [Dr A] stated his opinion that she nonetheless had the mental capacity and could understand the obligations of sponsoring the applicant at the time the visa application was lodged. The delegate in her decision chose to give little weight to this opinion as it appeared to contradict the findings in his earlier report.

15. More recently, the Tribunal has received evidence in the form of a report of 13 March 2021 from [Dr B], who is a consultant psychiatrist and claims to have been consulting the sponsor for the periods from November 2001 until March 2015 and from December 2020 until now. Given the extensive and specific nature of the contents of the letter, the Tribunal accepts that he has been treating the sponsor during those times as her treating psychiatrist.

16. In his letter, [Dr B] stated that he has diagnosed the sponsor with affective psychosis, which includes schizoaffective disorder and psychotic depression – the same diagnosis he claims to have made when the sponsor was in his care between 2001 and 2015. Elsewhere in his letter, he relevantly stated as follows:

    Your opinion as to [the sponsor]'s current cognitive ability and her mental capacity to understand complex matters such as agreeing to sponsor [the applicant] for a Carer Visa.

    In my opinion, [the sponsor] is capable of understanding complex matters such as agreeing to sponsor [the applicant] to remain in Australia to care for her. In my opinion, [the sponsor] suffers cognitive impairment (not decline) which is part of her depressive illness. This is also known as Pseudo-dementia. [The sponsor] does not suffer dementia for the following reasons:

    ·She was well oriented to time, place, and person when I met her again in 2020.

    ·She recognized me as a psychiatrist, who had treated her many years ago. She remembered and correctly stated my name. She was aware that she had problems with concentration and short-term memory. In Alzheimer's Disease, typically, the sufferer is not aware that he/she is losing her memory and is not distressed by his/her cognitive decline. [The sponsor] is aware and distressed by this symptom.

    ·Mini-mental state examination (MMSE) scores can be markedly influenced by psychotic or depressive symptoms. I note that [Dr. A] documented, in his report dated 30 March 2017, that [the sponsor]'s MMSE score was 12/30. In the absence of any psychotic or depressive symptoms, this score means very severe or even profound cognitive decline. If it's true that [the sponsor] had Alzheimer's Disease and was in advanced stage in March 2017, I would expect that her "dementia" would have been much worse in 2020/2021, or she would have been dead by now. However, her cognitive deficit does not progress further as evidenced by the above features. In addition, she remains in full control of her urinary and foecal functions (i.e., no urinary and fecal incontinence), does not get lost inside her home, and is aware of where things are in her home.

    ·[The sponsor] has foresight in that she knows her life would tum upside down if her sister were to return to Vietnam. She has been living in fear of this potential eventuality. Indeed, she wants to sponsor her sister to remain in Australia to care for her.

    [emphasis in original]

17. At hearing, the Tribunal had the opportunity to interview the sponsor and to ask her questions about her conditions, who she had been seeing about these, the role that the applicant has played in assisting her, and the applicant’s ability to be supported financially and in terms of accommodation among other things. Some of the Tribunal’s questions were specific in nature and called for the sponsor to recall certain people, addresses and dates. Her responses to the questions were relatively clear, and while she required some clarification of the questions and had some limitations on her ability to recall the specifics of some events, the Tribunal does not consider these out of the ordinary. Most importantly, the sponsor told it that she understood her obligations as the sponsor of the applicant.

18. The Tribunal has considered the evidence in front of it, including the evidence on the Department file such as the Carer Visa Assessment Certificate (CVAC) dated 11 July 2017, the reports of [Dr A] dated 30 March 2017 and 13 December 2018, as well as the abovementioned letter from [Dr B]. It has considered that [Dr A]’s 2017 report identified Alzheimer’s disease in the sponsor along with other psychological conditions. It has considered that this diagnosis appears to have been adopted in the CVAC, with the assessing doctor stating that there had been a diagnosis of Alzheimer’s disease and reciting the MMSE score given by [Dr A]’s 2017 report.

19. The Tribunal has given some weight to the 2017 report of [Dr A] wherein he stated that the sponsor was suffering from Alzheimer’s disease among other things. It accepts that this diagnosis was based on observations and on an MMSE score that included 1 out of 3 for memory recall. It notes that [Dr A] in his 2018 report provided information that seemed to contradict his earlier findings.

20. The Tribunal gives the most weight to findings made in [Dr B]’s report of 13 March 2021, which unequivocally states that the sponsor does not have Alzheimer’s disease. It accepts that [Dr B] has been the sponsor’s treating psychiatrist since 2001, albeit that he did not treat her for around five years from 2015 until late-2020. It accepts based on the length of time he has treated her that he has a detailed knowledge of her cognitive and mental conditions. It accepts based on this knowledge that he is able to make a diagnosis of these conditions with a high degree of confidence.

21. Based on the findings of [Dr B]’s report, and on the mostly clear answers the sponsor gave to the Tribunal’s questions and her recall of past events, the Tribunal finds that she is not suffering from Alzheimer’s disease and was not suffering from this condition at the time the visa was applied for. Furthermore, based again on the findings in [Dr B]’s report and on the cogent evidence from the sponsor at hearing, it finds that she has not at any material time suffered from any other condition that would render her unable to understand the obligations of being a sponsor.

22. Therefore, at the time of application, the applicant was sponsored as required by the legislation and satisfies cl.836.213.

    Are the sponsorship requirements met at the time of decision?

23. Clause 836.227 requires that at the time of decision the sponsorship mentioned in cl.836.213 had been approved by the minister and is still in force.

24. In coming to a finding on whether the sponsorship should be approved by the minister, the Tribunal has considered that the sponsor appears to have been cared for by the applicant since when the latter came onshore in 2017, although it notes that it has not made any assessment of the specific carer criteria under r.1.15AA of the Regulations. It has also considered that the applicant is being provided accommodation by the sponsor, who also provides her with money along with her family who live in Vietnam. To the extent that the Tribunal has a discretion to consider relevant matters before approving the sponsorship,[1] it finds that these matters cause it to be satisfied that the sponsorship should be approved.

    [1] Babar v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38. The alternative is that, there being no specific limitation placed on the sponsorship by the Regulations, the sponsorship must be approved because the undertakings in r.1.20 are not enforceable.

25. Lastly, there is no evidence before the Tribunal that the sponsorship has been withdrawn and so the sponsorship remains in force at the time of this decision.

26. Therefore, at the time of this decision, the applicant satisfies cl.836.227.

27. For the reasons above, the applicant meets the criteria for a Subclass 836 visa.

    DECISION

28. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    David Crawshay
    Member