2009842 (Migration)

[2021] AATA 1958

2009842 (Migration) [2021] AATA 1958 (28 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2009842

MEMBER:Helena Claringbold

DATE:28 April 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the primary visa applicant meets the following criteria for a Subclass 116 (Carer) visa:

·cl.116.212 of Schedule 2 to the Regulations; and

·cl.116.222 of Schedule 2 to the Regulations; and

the secondary visa applicant meets the following criteria for a Subclass 116 (Carer) visa:

·cl.116.322 of Schedule 2 to the Regulations.

Statement made on 28 April 2021 at 4:52pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – sponsorship requirements – mental capacity to understand obligations and undertakings – Alzheimer’s type dementia – significant global impairment – enduring power of attorney – Enduring Guardian – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20; Schedule 2, cls 116.212, 116.222, 116.322

CASES
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. On 1 April 2015, [the primary visa applicant], (the applicant) applied for an Other Family (Migrant) (Class BO) Carer visa. The application was made on the basis of providing care to his mother, [the sponsor and review applicant]. [Mrs A], who is the primary applicant’s spouse, is included in the application as a secondary visa applicant.

2. At the time of application Class BO contained three subclasses: Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A 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 116 visa.

3. On 23 April 2020, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that the sponsorship requirements were met. Therefore, the visa applicant did not meet cl.116.222 of Schedule 2 of the Regulations made under the Migration Act 1958 (the Act). On 13 June 2020, the visa applicant provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.

4. The sponsor appeared before the Tribunal on 28 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms KL, the sponsor’s daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.  The sponsor was represented in relation to the review by her representative.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Home Affair’s (the Department’s) case file and the Tribunal’s case file. 

   ISSUE

7. The issue in the present case is whether the sponsorship requirements are met.

   BACKGROUND ON THE EVIDENCE

8. The applicant was born in [year] in Ho Chi Minh City, Vietnam. His father is deceased. His mother, sister and brother live in Australia. He has [number] sisters who live in [Country 1]. The applicant was married to [named] from 1979 to 1989. There are two adult children from this relationship. On 23 April 2020, the applicant was refused an Other Family (Migrant) (Class BO) Carer (Subclass 116) visa.

9. The secondary visa applicant was born in [year] in Dong Thap, Vietnam. Her parents and siblings live in Vietnam. [In] May 2014, the applicant and secondary visa applicant (the applicants) married.

10. The sponsor was born in [year] in Cambodia. She was married to [named] until his death in May 1995. [In] April 1990, she entered Australia. [In] July 1992, she was granted Australian Citizenship.  

    Are the sponsorship requirements met at the time of application?

11. Clause 116.212 of Schedule 2 to the Regulations 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. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations. ‘Spouse’ is defined in r.1.15A of the Regulations (for visa applications made before 1 July 2009) and s. 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s.5CB of the Act).

12. Clause 116.222 of Schedule 2 to the Regulations requires that at the time of decision the sponsorship referred to in cl.116.212 has been approved by the Minister and is still in force.

13. Regulation 1.20 of the Regulations defines a sponsor of an applicant for a visa as ‘a person who undertakes the obligations stated in subregulation (2)(a) in relation to the applicant’, to assist the applicant to the extent necessary, financially and in relation to accommodation as follows:

    (i)  if the applicant is in Australia--during the period of 2 years immediately following the grant of that visa; or

    (ii)  if the applicant is outside Australia--during the period of 2 years immediately following the applicant's first entry into Australia under that visa;

    including any period of participation by the applicant in the program known as the Adult Migrant English Program administered by Immigration that falls within that period;

14. In Babar v Minister for 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.’[1]   The judgement did not address the capacity of a person to give the undertakings in r.1.20 in determining whether an applicant is sponsored.  The judgment related to a partner visa application.  However, it is also relevant to the application under review.

    [1] Babar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38 at [36]

15. At the time of application, the applicant claimed to be the carer of the sponsor. On 23 January 2015, the sponsor signed the sponsorship which included the section relating to her sponsorship undertakings. The sponsor has turned 18 years of age having been born in 1930.  She is a settled Australian citizen who is usually resident in Australia.

16. The Tribunal is satisfied that at the time of application the applicant was sponsored. Therefore, the applicant meets cl.116.212 of Schedule 2 to the Regulations.

    Are the sponsorship requirements met at the time of decision?

17. Clause 116.222 requires that at the time of decision the sponsorship referred to in cl.116.212 has been approved by the Minister and is still in force.

18. There is no evidence before the Tribunal that the sponsorship given by the sponsor on 23 January 2015 has been withdrawn. Therefore, at the time of decision, the sponsorship continues to be in force.

    Should the sponsorship be approved?

19. On 8 January 2015, Bupa Medical visa services issued a Carer Visa Assessment Certificate (CVAC), signed by Dr [B]. This provided the following information. The sponsor is an [age]-year-old widow who lives with her son Mr [C], in his home. The sponsor ‘has deteriorated cognitively over the last year, she remembers her children’s names but not her grandchildren…She is unable to recall day, date, place.’ She suffers from ‘Alzheimer’s type dementia diagnosed by a geriatrician.  Significant global impairment’.  She was diagnosed as having permanent conditions of impaired brain function and given an impairment rating of 30 and also with impaired continence function and given an impairment rating of 20.

20. The delegate stated that the sponsor had a score of 30 points for ‘Brain Function’ against Table 7 – Brain Function in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. According to these impairment tables, this maximum score is attributed to a person when they exhibit ‘Extreme’ function impact on their activities of daily living (ADLs) due to a neurological or cognitive condition.

21. In a statutory declaration dated 25 February 2015, the sponsor provided information about her arrival and living in Australia and about her family and about various services.  She stated that due to her health she asked her son and his wife to come to Australia and care for her.  The statutory declaration is written in English.  There no evidence before the Tribunal that the sponsor can read, write or understand English.

22. In letters dated 2014 and 2017,  Dr [D] stated that the sponsor should have a fulltime carer who can speak her language. While noting that she suffers from dementia they do not give any insight into the sponsor’s capacity.

23. On 10 May 2019, the Department invited the sponsor to provide further medical evidence to demonstrate that she undertook the sponsorship undertakings; or to provide evidence of any person having legal authority in place in relation to making financial, health and lifestyle decision on her behalf.

24. On 21 June 2019, the sponsor provided a report dated 15 June 2019, from Dr [E], which provided information including the following. The report is to support the application for a carer visa for the sponsor’s son. He understands that the sponsor received a score of 30 points on her CVAC dated 8 January 2015, ‘investigations arranged’ and reviewed today for the report. The sponsor needs to provide evidence that she has the mental capacity to understand her obligations and undertakings of her sponsorship for her son. The sponsor was assessed by Dr [E] on 8 June 2019. She was born in Cambodia and went to Vietnam at 18 years of age. She was a [shop owner] in Vietnam. She came to Australia in 1990. She speaks Cantonese and is of non-English speaking background.  They have no language barrier in communication.  On 6 November 2014, the sponsor was reported to have Alzheimer’s Disease. At that stage she presented with short time memory impairment some of the time and could manage her personal affairs. Today her mini mental state examination score was 22/30, orientation 6/10, attention 2/5 and recall 2/3, ‘which is an underscore, due to her lack of education, language barrier and CALD background. CT 12 June 2019 showed normal brain with mild periventricular hypoattenuation in keeping with chronic small vessel disease normal for her age.

25. Dr [E] continued. As a protocol he asked his patients for carer visa applications the reasons they have come to him. The sponsor was able to explain to him the reasons for the assessment. She demonstrated that she was aware of her obligations of aa a sponsor for her son and daughter-in-law, including giving them support, accommodation and financial assistance as required. Her presentation of short-term memory loss has been occasional and not most of the time. Based on his assessment and the carer visa application process given to him by the sponsor, he is of the opinion she had the mental capacity to understand her sponsorship obligations in 2015 when her cognitive state ‘should be much better’.  She also has mental capacity today and an understanding of her obligations in regard to the carer visa application.

26. In a statutory declaration dated 15 April 2021, Ms [F], the sponsor’s daughter, provided information including, the following. Her mother is in need of a carer to look after her basic needs. The sponsor has appointed Ms [F] to be her power of attorney and enduring power of attorney. These allow her to make financial and health and lifestyle decision on behalf of the sponsor. She understands the undertakings in managing the financial affairs for the sponsor.  As such the sponsor is able to meet the undertakings in providing accommodation and financial assistance to the applicant for up to two years from the date of the grant of the visa. Ms [F] agrees to the following:

    a.To provide information and advice to assist the applicant and his wife to settle in Australia;

    b.To ensure accommodation is available to them in Australia or if necessary, to provide accommodation for up to two years from the date of their arrival in Australia, if necessary;

    c.To provide financial assistance as required to meet their health and medical and pharmaceutical needs;

    d.To provide support as required to enable them to attend appropriate English language courses;

    e.To attend an interview (if requested by the Department) in relation to their application;

    f.To inform the Department in writing if she/the sponsor withdraws support for them before this application is finalised;

    g.She is aware that all migrants to Australia are not eligible for an Australian aged or disability pension until they have been a permanent resident for 10 years; and

    h.Any person who provides false or misleading information or who deceives or misleads or who presents a forged document to an Australian Government official may be prosecuted; and

    i.If false or incorrect information is given on this form, the applicant’s application may be refused and/or any visa granted to him may be liable to cancellation.

    j.She authorises Human Services to give information about the sponsor, relevant to  the sponsor’s offer to provide sponsorship, to the Department; and

    k.The Department to obtain information relevant to the offer to provide this sponsorship from other government agencies or organisations and the agencies/ organisations may including: federal, state or territory government agencies; federal, state or territory law enforcement agencies; state or territory housing authorities (including private landlords); local government authorities; financial institutions; educational institutions; private businesses (including telecommunication and internet; service providers, insurance companies); and any other relevant businesses or agencies.

27. In a document signed and dated 18 June 2020, the sponsor appoints Ms [F] as her  ‘Enduring Power of Attorney’.  This appoints Ms [F] with the authority to manage the sponsor’s legal and financial affairs, including buying and selling real estate, shares and other assets, operating her bank accounts and spending money on her behalf. The attorney's power continues even if for any reason the sponsor loses her mental capacity to manage her own affairs and ‘once’ she loses her mental capacity she cannot revoke this power of attorney.

28. The document is signed by a solicitor who declared that she explained the effect of this power of attorney to the principal before it was signed; the principal appeared to understand the effect of this power of attorney; she is a prescribed witness; she is not an attorney under this power of attorney; and she witnessed the signature of this power of attorney by the principal.

29. In a document signed and dated 18 June 2020, the sponsor appoints Ms [F] as her ‘Enduring Guardian’. This appoints Ms [F] with the authority to decide where the sponsor lives; to decide what health care she receives; to decide what other kinds of personal services she receives; to consent to the carrying out of medical or dental treatment on her (in accordance with Part 5 of the Guardianship Act 1987); and the sponsor places no conditions on the authority of her enduring guardian. Directions follow relating to end of life medical intervention. The document is signed by a solicitor who declared that the sponsor appeared to understand the effect of the instrument and executed the instrument voluntarily in her presence.

30. The sponsor told the Tribunal the following. She signed the sponsorship form to sponsor her son and his wife to come to Australia and care for her. She went on to explain that she signed the ‘Enduring Power of Attorney’ and the ‘Enduring Guardian’ documents to enable her daughter Ms [F] to take care of her affairs, so that she didn’t have to worry about them. She said that she cannot write, read or understand English and Ms [F] wrote her statutory declarations. 

31. Ms [F] told the Tribunal the following. When the sponsor signed the ‘Enduring Power of Attorney’ and the ‘Enduring Guardian’ documents, the solicitor went through the information  slowly and explained to the sponsor the ramifications of signing the documents. The sponsor understood the outcome of signing the documents. Ms [F] is distressed as a result of caring for her husband who has Alzheimer’s disease.  She assists her husband and when he is settled, she rushes to the sponsor and provides her with assistance. However, it has been very difficult and the continued demands on her are having a detrimental affect on her health and wellbeing. The sponsor lives with Mr [C], her son.  He is unable to provide his mother with the assistance she needs.  He works fulltime and is in a homosexual relationship and lives between his home and his partners home. Ms [F] wrote the sponsor’s statutory declaration because the sponsor can only write a little. The statutory declarations in support of the application were written by the sponsor’s representative.      

32. The Tribunal explained to the sponsor and Ms [F] that it would be more appropriate for the authors to write their statements in their own words and language and then for those statements to be translated by an authorised person.  It explained to the sponsor and Ms [F] that, the purpose of third-party statements is to obtain individual, spontaneous and accurate statements.  The Tribunal is concerned that obtaining third party statements in this manner may not record the author’s information accurately.

33. The Tribunal considered the evidence provided on 8 January 2015 in the CVAC that the sponsor suffered from ‘Alzheimer’s type dementia diagnosed by a geriatrician and had ‘Significant global impairment’.  It pondered this information against the report dated 21 June 2019, by Dr [E], where his opinion is that the sponsor had mental capacity to understand her sponsorship obligations in 2015 when her cognitive state ‘should be much better’ and understood her sponsorship obligations in June 2019.  While respecting Dr [E]’s opinion, there is an anomaly between his opinion and the diagnosis of the geriatrician as detailed in the CVAC that the sponsor had ‘Significant global impairment’.

34. Notwithstanding this dilemma, it appeared to the Tribunal that the sponsor understood that she was sponsoring the applicants for a carer visa. She also understood that in signing  the ‘Enduring Power of Attorney’ she provided Ms [F] with the authority to manage the sponsor’s financial matters.  The evidence given in Ms [F]’s statutory declaration is that she undertakes to fulfill the sponsorship obligations on behalf of the sponsor. She declared that she will assist the applicants to the extent necessary, financially and in relation to accommodation during the period of two years immediately following the applicants first entry into Australia under that visa, including any period of participation by the applicant in the program known as the Adult Migrant English Program administered by Immigration that falls within that period.

35. The Tribunal is satisfied on the evidence that Ms [F] is fully aware of, supports and understands that she on behalf of the sponsor will fulfill the sponsorship obligations. Therefore, the applicant meets r.1.20(2) of the Regulations.

1. At the time of decision, the Tribunal approves the sponsorship. The applicant meets cl.116.222 of Schedule 2 to the Regulations.

2. As the Tribunal has approved the sponsorship, it finds that the secondary visa applicant meets cl.116.322 of Schedule 2 to the Regulations.

3. 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 116 visa.

   DECISION

4. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the primary visa applicant meets the following criteria for a Subclass 116 (Carer) visa:

   ·cl.116.212 of Schedule 2 to the Regulations; and

   ·cl.116.222 of Schedule 2 to the Regulations; and

   the secondary visa applicant meets the following criteria for a Subclass 116 (Carer) visa:

   ·cl.116.322 of Schedule 2 to the Regulations.

   Helena Claringbold
   Member