1908430 (Migration) - [2021] AATA 1188

1908430 (Migration) [2021] AATA 1188 (20 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1908430
MEMBER:Hugh Sanderson
DATE:20 April 2021
PLACE OF DECISION: Sydney
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 20 April 2021 at 1:39pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsor’s capacity to understand sponsorship obligations – multiple physical and mental impairments – no other family members able to provide care and no suitable community services available – medical reports – other son appointed as attorney and guardian – undertaking to provide accommodation and financial assistance – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA, 1.20(1), (2), Schedule 2, cls 836.213, 836.227
CASES
Babar v Minister v Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38
Huang (Migration) [2021] AATA 354
Lo v MICMSMA [2020] FCA 895
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 March 2019 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 7 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.
The delegate refused to grant the visa on the basis that cl.836.227 was not met because the delegate was not satisfied the sponsorship could be approved as the delegate was not satisfied the sponsor was able to understand the requirements of the undertaking that must be given by the sponsor.
Background
The applicant is a citizen of Vietnam. His parents, two brothers and a sister all reside in Australia. He stated he was married with two children, currently [age range] years old, who were not included in the application. The applicant was sponsored in his application by his father [who] is currently [age] years old. The sponsor was granted a Subclass 143 Contributory Parent visa and at the time of the application had the right to reside permanently in Australia. He is now an Australian citizen. He has resided in Australia since 2013.
The applicant entered Australia [in] March 2017 holding a Subclass 600 Visitor visa. It was claimed that he started looking after his father at that time as there was no one in Australia who was able to provide care for him and no community services where Vietnamese was spoken to provide care for his father. The applicant’s father signed the sponsorship documents on 8 August 2017.
In the Carer Visa Assessment Certificate, it was found by the doctor preparing the report that the sponsor had an impairment rating of 35. It was found that the sponsor was suffering from dementia, osteoarthritis, hypertension, diabetes and urinary incontinence. The sponsor’s dementia rating was 20. It was noted that the sponsor’s wife was providing his main care, but she suffered from medical problems herself and was unable to provide regular care.
The Department wrote to the applicant on 12 December 2018 requesting more information in respect of the sponsorship obligations. It was noted that as the sponsor was suffering from dementia, the Department may not be satisfied as to his understanding of what he was undertaking. The documents provided by the applicant in support of the application, including a letter from his GP showing that he was under investigation for progressive dementia secondary to cerebral atrophy diagnosed in 2015, indicated an incapacity to understand the sponsorship obligations.
The applicant provided a number of documents to support the claim that the sponsor had the mental capacity to understand the requirements of the sponsorship. This included the following:
·A statement of the sponsor signed on 7 January 2019;
·Statement from the applicant;
·Letter from the sponsor’s general practitioner outlining his medical history; and
·A letter from [Dr B], geriatrician, dated 3 January 2019, finding that the sponsor had demonstrated he had the mental capacity to understand the obligations of sponsoring his son as his carer.
The delegate who considered the application noted the following issues:
·A sponsor in a Carer visa application undertakes to ensure that their family member is supported in Australia during the two years after the visa is granted and does not become a charge upon the wider Australian community;
·The sponsor is suffering from significant cognitive impairment and has provided no evidence that anyone has been appointed with the legal authority to make decisions on his behalf;
·There was nothing to indicate the sponsor’s wife had any legal authority to give the sponsorship undertakings on behalf of her husband; and
·The medical evidence indicated that at the time of the decision the sponsor did not have the mental capacity to understand the sponsorship obligations.
Taking these matters into account, the delegate was not satisfied that the sponsorship for the application could be approved as the sponsor did not have the mental capacity to make the necessary undertakings. The delegate found the criteria in cl.836.227 was not met and refused the application.
No assessment was made as to whether the applicant met the definition of carer in r.1.15AA of the sponsor, and in particular, if the assistance required by the sponsor cannot reasonably be provided by any other relative of the sponsor who is resident in Australia, to meet the criteria in cl.836.221.
Information to the Tribunal
The applicant provided further documents to the Tribunal including the following:
·Citizenship certificates of the sponsor and his wife stating that they acquired Australian citizenship [in] October 2019;
·An enduring power of attorney by the sponsor appointing his son, [Mr C], as his principal attorney and the applicant as his substitute attorney;
·Form for the registration of the appointment of an enduring guardian signed on 27 October 2020;
·Aged Care Support Plan dated 21 January 2021;
·Hospital discharge dated 22 February 2021;
·Further reports from [Dr B] including reports dated 4 April 2019 and 15 October 2020;
·Financial information in respect of the sponsor’s son, [Mr C], who holds the power of attorney and is the guardian of the sponsor, and his wife;
·Undertaking signed by [Mr C] as the attorney and guardian of the sponsor in accordance with the undertaking requirements for the Carer visa for the sponsor; and
·Statement from the sponsor.
In light of the information now provided to the Tribunal, the Tribunal has proceeded to a decision in the matter without the need for a hearing.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Clause 836.213 requires that at the time of application the visa applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18, is a settled Australian citizen, permanent resident or an eligible New Zealand citizen, and is usually resident in Australia. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.
The evidence before the Tribunal, which the Tribunal accepts, is that at the time of the application, the visa applicant was sponsored by the review applicant who is the visa applicant’s father and was over the age of 18. He is an Australian citizen and a settled resident of Australia.
In assessing whether the time of application criteria in cl.836.213 are met, the Tribunal adopts the reasoning in the decision in Huang case number 1815336 (differently constituted) where the following was stated:
Regulation 1.20 defines a sponsor as ‘a person who undertakes the obligations stated in subregulation (2)’, which in the case of a carer visa, are ‘to assist the visa applicant to the extent necessary, financially and in relation to accommodation for two years.[1]
Since the delegate’s decision, there has been some relevant judicial consideration of these issues. Specifically, the caselaw establishes that at time of application the giving of the undertaking is all that is required for a person to be a sponsor for the purposes of these criteria. In Babar v Minister v Immigration, Citizenship, Migrant Services and Multicultural Affairs the Full Federal Court stated ‘In applying that requirement, no issue arises which involves an assessment of the capacity of the person to fulfil the undertaking if required’… giving the undertaking simpliciter is sufficient.[2] Although this judgment concerned sponsorship for a partner visa, the Tribunal observes that carer visas feature the same sponsorship framework.
The Tribunal has also considered the judgement in Lo v MICMSMA,[3] of a single judge, Rares J. This case concerned a Subclass 836 carer visa application and the issue under consideration was whether the relevant sponsor could be identified at a time after the visa application was lodged. Rares J held that cl 836.213 requires that an applicant is sponsored at time of application and cl 836.227 requires that the sponsorship put forward at the time of application has been approved and is still in force at time of decision. Specifically, the judgement establishes that cl. 836.213 does not allow the sponsor to be identified (or changed) after the time of visa application. However, relevantly to the present matter, at [27] the Court observed that the Tribunal made ‘an unchallenged finding’ that it was not satisfied, when he signed the sponsorship form in 2012, the father understood the nature of the sponsorship obligations and found ‘no error’ in this aspect of the Tribunal’s decision.
While on the one hand, this may suggest it is open to consider the issue of the sponsor’s mental capacity to give the undertaking in determining whether the visa applicant is sponsored, the Tribunal considers this does not necessarily sit well with the conclusions of the Full Federal Court in Babar, referred to above, that giving the undertaking simpliciter is sufficient (at [36]) and that no issue arises involving an assessment of the capacity of the sponsor to fulfil the undertakings. The Tribunal observes that Rares J in Lo noted that the Tribunal’s finding on the mental capacity of the sponsor was unchallenged, and the issue of the Tribunal’s assessment of mental capacity in the context of cl.836.213 appears to have not been specifically argued before the Court or Circuit Court before it. Notably, there is no mention in Rares J’s decision of the judgement of the Full Court that was handed down only several months prior. In these circumstances, the Tribunal is inclined to treat the Court’s observation on this point as just that, obiter; the ratio of the decision being that cl.836.213 does not allow the sponsor to be identified after the time of visa application.
In the Tribunal’s view, it is not clear on the present state of judicial authority that it is open to assess the mental capacity of the sponsor in giving the undertaking, once it is made, given that Babar makes clear no issue arises as to the sponsor’s capacity to fulfil the undertakings.
Therefore, on the authority of the Full Federal Court in Babar, the Tribunal finds, on the evidence of the signed Form 40 Sponsorship dated 15.12.2016, the applicant was sponsored at the time of the application and meets cl.836.213.
[1] Regulation 1.20(1), (2).
[2] [2020] FCAFC 38 at [36].
[3] [2020] FCA 895.
The Tribunal is satisfied that at the time of the application, the review applicant was the nominated sponsor of the visa applicant for the Carer visa. The Tribunal notes the review applicant as the sponsor suffered dementia at that time, however, simply a fact that a person suffers from dementia does not necessarily mean he or she does not have the mental capacity to make other decisions in their life. In any event, the Tribunal is satisfied that the decision in Babar means that no issue arises as to a sponsor’s capacity to fulfil the undertakings. All that is necessary is that the visa applicant is sponsored by the Australian relative who has turned 18.
Accordingly, the Tribunal is satisfied that at the time of the application the visa applicant was sponsored as required by the legislation and satisfies cl.836.213.
Are the sponsorship requirements met at the time of the decision?
At the time of the decision, the visa applicant is required to meet cl.836.227, which requires that the sponsorship referred to in cl.836.213 has been approved by the Minister and is still in force.
The basis of the Department’s decision was that the delegate considered the sponsor did not have the ability to understand the sponsorship obligations and no person or agency had the legal authority to make financial, health and lifestyle decisions on behalf of the sponsor. As the delegate was not satisfied, based on any substantial empirical legal documentation that met the required evidentiary standard, that the sponsor or any person on his behalf had the mental capacity to give the sponsorship undertakings, the delegate did not approve the sponsorship.
In coming to this decision, the delegate noted the applicant had been diagnosed with mixed type dementia including Alzheimer’s and vascular dementia. Reference was made to the examinations by [Dr B] conducted in 2017. The delegate referred to the Carer Visa Assessment Certificate dated 26 February 2019 confirming the diagnosis of dementia.
The assessment of whether an individual has the mental capacity to give an undertaking or make other decisions in their lives is subjective. There is a presumption of mental capacity, however, if an individual’s mental capacity is in doubt, the assessment of whether a person has the mental capacity to make particular decisions depends on the issues where decisions are to be made and an individual’s capacity to understand the issues put before them. Simply because a person may be suffering dementia or some other intellectual disability does not mean that they do not have the capacity to make certain decisions in their lives.
The Law Society of NSW produced a Practical Guide for Solicitors – When a Client’s Mental Capacity is in Doubt in 2016[4]. In this guide, under the heading: What is “Mental Capacity”?, the following was stated:
There is no single legal definition of mental capacity in New South Wales. Rather, the legal definition of mental capacity depends in each case on the type of decision which is being made or the type of transaction involved.[5]
This means there are a variety of legal tests of mental capacity. Some are contained in legislation such as the Guardianship Act 1987 (NSW) and others have been developed in common law, such as the test for testamentary capacity.
The different legal tests for mental capacity mean that a client may have the mental capacity to make some decisions, such as deciding whether to make small purchases like groceries, but may lack the mental capacity to make other decisions such as deciding whether to enter into more complicated financial arrangements.
A finding of incapacity in one area does not automatically mean that mental capacity is lacking in another area; for example, the Supreme Court of NSW has found that a person who is incapable of managing their financial affairs may still be mentally capable of making a will[6].
It has been suggested that the same mental capacity may not be necessary to revoke a will as to make one[7]. Similarly, lesser mental capacity may be needed for a codicil than a will[8]. A person may not be capable on managing their affairs but have the mental capacity to make an enduring power of attorney[9]. A person may not have the mental capacity to make a contract but have capacity to make a will[10]. Similar, if not greater, mental capacity is needed to make a power of attorney compared to that required for a will[11]…
Despite the many different legal tests for mental capacity, the fundamental issue is whether the client is able to understand the general nature of what they are doing[12]. If a client has ongoing difficulty in demonstrating this level of understanding then this may indicate a lack of mental capacity which warrants further exploration by the solicitor.
[4] Clients mental capacity.pdf (lawsociety.com.au)
[5] Gibbons v Wright [1954] HCA 17.
[6] Re Estate of Margaret Bellew [1992] Supreme Court of NSW, Probate Division (Unreported) McLelland J, 13 August 1992.
[7] d’Apice v Gutkovich - Estate of Abraham (No. 2) [2010] NSWSC 1333, [96], Public Trustee v Elderfield; estate of Poole (Supreme Court of NSW, Young J, 26 April 1996, unreported).
[8] Hay v Simpson (1890) 11 LR (NSW) Eq 109.
[9] Re K [1988] 1 Ch 310.
[10] Banks v Goodfellow (1870) LR 5 QB 549 citing Stevens v Vancleve (1822) 23 F. Cas. 35.
[11] Szozda v Szozda [2010] NSWSC 804.
[12] In CJ v AKJ [2015] NSWSC 498 at [32] the court stated: “The general law does not prescribe a fixed standard of “capacity” required for the transaction of business. The level of capacity required of a person is relative to the particular business to be transacted by him or her, and the purpose of the law served by an inquiry into the person’s capacity: Gibbons v Wright (1954) 91 CLR 423 at 434-438”.
On their website, Capacity Australia makes the following comments with regards to decision making capacity:
A person with a disability or medical impairment can still have decision-making capacity.
While a person may have a disability or medical condition, this does not mean that they lack decision-making capacity (the ability to make a decision). For example, a diagnosis of Alzheimer’s disease or other dementia, mental illness, intellectual or other cognitive disability or acquired brain injury does not automatically mean a person cannot make their own decisions. Just because you disagree with a decision does not mean the person who made it lacks decision-making capacity…
Capacity is decision specific – it depends on the decision being made.[13]
[13] Capacity Australia at
The applicant has provided reports from [Dr B], the sponsor’s treating consultant physician and geriatrician. He has been treating him since June 2017. He has conducted various Mini Mental State Examinations where the sponsor was assessed as reaching various scores. In the report dated 15 June 2017 his score was 12/30. Subsequent to that, the sponsor was prescribed various medications, including an Exelon Patch, and his other medical conditions have been stabilised. In the report dated 15 October 2020, his score was 25/30, which was a further improvement from his scores in January 2019 of 21/30 and April 2019 of 23/30.

The opinion given by [Dr B] in October 2020 was that the sponsor had the ability to reason and to deliberate about his choices, had the ability to comprehend context of conversations, was competent in decision making in all areas including financial management and had the mental capacity to sign legal documents.
The sponsor executed an enduring power of attorney and an appointment of enduring guardian, appointing his son, [Mr C], as his attorney and guardian. These documents were signed in November 2020.
[Mr C] has signed the statutory declaration in his role as the attorney and guardian of the sponsor giving the undertakings in accordance with the sponsorship forms for the Carer visa on behalf of the sponsor agreeing to those undertakings. Evidence has been provided of the financial circumstances of the sponsor and the assistance that the sponsor’s attorney would give to the sponsor to ensure his compliance with the sponsorship undertakings. This includes providing adequate accommodation and the financial assistance required to meet the applicant’s reasonable living needs for up to two years from the date of the grant of the visa.
There is no information before the Tribunal which would indicate that the sponsorship given by the sponsor at the time of the application has been withdrawn. Although the sponsor suffers from dementia, the Tribunal accepts the evidence of [Dr B] that the sponsor has the mental capacity to give the sponsorship undertakings and appoint his son, [Mr C], as his attorney and guardian.
The Tribunal notes the Assessment made by [Dr D] for the Carer Visa Assessment Certificate. In that report, the following was noted as to the sponsor’s brain function:
(The sponsor) has a history of dementia and requires daily reminders and assistance to complete his ADLs. His wife reports that he requires close supervision to ensure he does not go wandering outside by himself as he has gotten lost previously even in familiar environments. On examination today, he was not orientated to the time or place. He required assistance and prompts from his wife to answer questions regarding his daily activities due to poor recall.
The Tribunal accepts the assessment for the Carer Visa Assessment Certificate found that the applicant suffered dementia affecting brain function giving him an incapacity rating of 20 for that aspect of his medical condition. This is not, however, an assessment as to whether the applicant has the mental capacity to give the sponsorship undertakings as required for the grant of the Carer visa. The Tribunal prefers the assessments from [Dr B] who has been working with the sponsor since June 2017 and has prescribed medication for him which has improved his mental function. The assessment of [Dr B] is that the mental incapacity the sponsor suffers from may affect his capacity to remember the day of the week or lead him to get lost if he goes wandering, however, it does not impact his capacity to understand his responsibility of giving an undertaking to provide support and accommodation to the visa applicant. It does not affect his capacity to sign legal documents.
Further, the sponsor has executed an enduring power of attorney and an appointment of an enduring guardian. The Tribunal accepts that at the time these documents were executed the sponsor had the mental capacity to understand the general nature of what he was doing when he executed those documents appointing his son, [Mr C], as his attorney and guardian.
Evidence has been provided of the capacity of the sponsor to provide adequate accommodation and financial assistance to the applicant for the period of at least two years after the grant of the visa. The attorney and guardian of the sponsor has indicated he will be providing direct personal assistance on his own behalf to ensure the sponsor is able to meet those undertakings.
The Tribunal is satisfied that by giving the sponsorship undertaking, the sponsor, and his attorney and guardian if required, understand the nature of the undertakings being given. The Tribunal is satisfied the sponsor has the capacity to meet the sponsorship undertakings and there is no reason why the sponsorship should not be approved. There is nothing to indicate that the sponsorship provided at the time of the application has been withdrawn and the evidence provided is that the sponsor, either in person or given on his behalf by his attorney and guardian, continues with their sponsorship and maintains the undertakings given in association with that sponsorship.
Accordingly, the Tribunal approves the sponsorship and finds the applicant meets the criteria in cl.836.227.
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.836.213 of Schedule 2 to the Regulations; and
·cl.836.227 of Schedule 2 to the Regulations.
Hugh Sanderson

Member