Baratali (Migration)

[2021] AATA 4251

Baratali (Migration) [2021] AATA 4251 (17 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohammad Yaghoub Baratali

VISA APPLICANTS:  Mrs Farima Barat Ali
Mr Hamid Noori
Ms Marwa Noori
Ms Madina Noori
Ms Sana Noori

CASE NUMBER:  1932735

HOME AFFAIRS REFERENCE(S):          OSF2015/052555

MEMBER:Helen Kroger

DATE:17 August 2021

PLACE OF DECISION:  Melbourne

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

·cl 116.222 of Schedule 2 to the Regulations.

Statement made on 17 August 2021 at 12.55am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – sponsorship requirements – mental capacity to understand obligations and undertakings – memory impairment – physical impairment – stroke – unable to verbally communicate – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, 116.222

CASES
Lo v MICMSMA [2020] FCA 895       

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 21 October 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 29 December 2015. At that time, 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 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 116.222.

3. The delegate refused to grant the visas on the basis that cl 116.222 was not met because the delegate was not satisfied the review applicant (sponsor) had the mental capacity to understand the sponsorship requirements and therefore the sponsorship was not approved by the delegate.

4. The Tribunal was unable to make a favourable decision on the papers and invited the review applicant to appear before the Tribunal on 26 May 2021 to give evidence and present arguments. The hearing was conducted by teleconference in accordance with the Act. The review applicant, primary visa applicant and the review applicant’s wife, Ms Mohammadi attended the hearing. Ms Mohammadi informed the Tribunal at the beginning of the hearing that the review applicant (sponsor), her husband, was non-verbal and was physically present, sitting next to her, and that he was unable to communicate. She told the Tribunal that whilst he could not speak, that he was aware of the hearing. She further noted that the sponsor’s Doctor had told her that he (her husband)  would never be able to speak again and indicated separately that he was able to communicate when he needed to drink or eat. The Tribunal indicated to Ms Mohammadi that it needed to be satisfied that the sponsor had the capacity to understand and participate in the proceedings, noting that the sponsor did not have an authorised migration agent nor had he approved written authorisation for any other person to represent him.

5. The Tribunal invited Ms Mohammadi to provide an assessment by a medical practitioner in regard to the sponsor’s capacity to participate in the hearing by 4 June 2021 and adjourned the hearing. A second hearing was scheduled and held on 17 August 2021 and was conducted by video conference, according to the Act. This hearing was attended by the review applicant, his wife Ms Shanifnaz Mohammadi, the primary visa applicant, Ms Farima Barat Ali and Ms Hamida Yadoubi, daughter of the review applicant.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

7. The review applicant provided a copy of the delegate’s Decision record to the Tribunal for the purpose of this review.

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

   BACKGROUND

9. The visa applicant, Ms Farima Barat Ali applied for the Other Family (Migrant) (Class BO) Carer (Subclass 116) visa on the basis of being the carer for the sponsor, Mr Baratali. Mr Baratali was born in Afganistan, is 65 years of age and is an Australian citizen. The primary visa applicant claims to be his daughter, that the first named secondary applicant is her husband, and the further three secondary applicants her children and currently resides in Afghanistan.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the sponsorship requirements are met by the visa applicant.

    Are the sponsorship requirements met?

11. Clause 116.212 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. 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 reg 1.03 of the Regulations. ‘Spouse’ is defined in reg 1.15A (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. According to the medical assessment (CVAC) completed on 17 November 2015 by Bupa Medical Visa Services, the report on Mr Baratali indicates that he suffers from significant and complex medical issues. The report notes that Mr Baratali appeared disorientated to time, place or person and appeared disinhibited during the interview. The report also records that he exhibited signs of memory impairment along with significant physical impairment impacting his mobility, indicating support was required for his daily physical requirements such as bathing, eating, toileting, grooming, transportation and supervision for personal safety. He was found to have a rating of 90 according to Table 7 – Brain Function of the Social Security Act 1991. A rating of 90 at time of application placed the review applicant in the serious range. The Tribunal has considered the various medical assessments and submissions made by the applicant and provided to the Department from his treating physicians at the Dandenong Superclinic that provide a detailed account of his physical and mental health condition, indicating that the significant impairment at the time of application related to the sponsor’s multiple physical conditions. The Tribunal has considered the evidence before it that indicates that the sponsor subsequently suffered a stroke in 2017 that further impacted on his ability to communicate verbally.

13. The giving of the undertaking is all that is required for a person to be a sponsor and sponsored for the purposes of these criteria. It is not a requirement that the sponsor also have capacity to fulfil the undertaking. Whilst a review should not be made on whether the sponsor has the capacity to fulfil the sponsorship undertaking, it is open to consider whether the sponsor has the mental capacity to give the undertaking in determining whether a visa applicant is sponsored. There has been some relevant judicial consideration of these issues since the delegate’s decision. 

14. Specifically in,  Lo v MICMSMA [2020] FCA 895 at [27], the Court found no error in the Tribunal’s unchallenged finding that it was not satisfied that when the applicant’s father, who had a dementia condition, signed the sponsorship form he understood the nature of the sponsorship obligations.

15. The Tribunal invited the review applicant’s wife, Ms Mohammadi to comment on his deteriorating health and she told the Tribunal that not withstanding his poor health, that he was independent in his activities, attending the local mosque on his own three years earlier and that his health had substantially deteriorated since his stroke in 2017. The Tribunal invited the sponsor to participate in the hearing, whilst recognising that he was unable to verbally communicate. Prior to the hearing, medical evidence from the sponsor’s Doctor was submitted, indicating that the sponsor was fully aware of his circumstances although he was not able to speak. The sponsor was able to communicate to the Tribunal by nodding his head and closing his eyes. The Tribunal asked the sponsor if he had completed the visa application form that is the subject of this review and his understanding of the sponsorship requirements as set out in the Regulations. He indicated that he was aware of the sponsorship undertakings in the visa application. The Tribunal is satisfied that at the time the application was made, that the sponsor met the sponsorship requirements as set out in cl.116.212.

16. The applicant’s wife, Ms Mohammadi told the Tribunal that she was granted power of attorney for her husband in 2017, indicating that there was no power of attorney in place at the time of the visa application in 2015.

17. Based on all the evidence, the Tribunal is satisfied that the review applicant had the capacity to understand his sponsorship obligations at the time of the application.

18. Although not relevant to this decision, the evidence before the Tribunal indicates that the sponsor’s health has significantly declined since the application was made in 2015, and that whilst the sponsor was able to communicate his awareness of what was taking place, his appearance before the Tribunal indicated his complete physical dependency on his family for all his needs, due to his total lack of mobility and limited bodily functions.

19. The Tribunal has considered all the evidence before it, including all medical documentation and finds that at the time of the application, the visa applicant was sponsored as required by the legislation and satisfies cl.116.212. It follows that the secondary applicants satisfy cl.116.212.

20. 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

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

    ·cl 116.222 of Schedule 2 to the Regulations.

    Helen Kroger