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

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).
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baratali (Migration)

Details

AGLC: Baratali (Migration) [2021] AATA 4251
Case: [2021] AATA 4251
Decision Date: 17 August 2021

CaseChat Overview and Summary

This matter concerned an appeal by Ms Farima Barat Ali against a decision regarding her application for an Other Family (Migrant) (Class BO) Carer (Subclass 116) visa. Ms Barat Ali applied to be the carer for the sponsor, Mr Baratali, an Australian citizen. The core of the dispute revolved around whether the sponsorship requirements for the visa were met, given Mr Baratali's significant medical conditions.

The Tribunal was required to determine whether the sponsorship requirements under clause 116.212 of the Regulations were satisfied. Specifically, the central legal issue was whether Mr Baratali, the sponsor, possessed the mental capacity to give the sponsorship undertaking, notwithstanding his documented physical and cognitive impairments, including memory loss and a subsequent stroke that affected his verbal communication.

The Tribunal considered medical assessments indicating Mr Baratali suffered from disorientation, memory impairment, and significant physical limitations requiring assistance with daily activities. He received a rating of 90 for brain function, placing him in the serious impairment range at the time of the visa application. While acknowledging that a sponsor is not required to have the capacity to fulfil the undertaking, the Tribunal found it was open to consider the sponsor's mental capacity to give the undertaking itself when assessing whether a visa applicant is sponsored.

Consequently, the Tribunal remitted the applications for reconsideration, directing that certain criteria for the Subclass 116 visa were met, and that the Minister should consider the remaining criteria.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND 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 The issue in the present case is whether the sponsorship requirements are met by the visa applicant.Are the sponsorship requirements met? 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). 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. 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.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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 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

Ratio Decidendi

Legal Principle Established

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