CHO (Migration)

[2019] AATA 4072

CHO (Migration) [2019] AATA 4072 (18 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Hyun Sun CHO
Mr Chan Young CHO
Ms Woolim CHOI

CASE NUMBER:  1715810

DIBP REFERENCE(S):  CLF2013/205677 clf2017/46791

MEMBER:Moira Brophy

DATE:18 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 18 July 2019 at 3:51pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) – Subclass 836 (Carer) – sponsorship requirements – appointed guardian – sponsor unable to communicate – undertaking by sponsor – absence of understanding by sponsor – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 836.213, 836.221, 836.321, r 1.15AA

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in this application is whether the sponsorship requirements have been met at the time of application.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 July 2017 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

3. The applicants applied for the visa on 26 August 2013. 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.

4. The delegate refused to grant the visas on the basis that cl.836.213 was not met because the delegate was not satisfied the sponsorship requirements had been met.

5. The applicants, Mrs Hyun Sun Cho and Mr Chan Young Cho, appeared before the Tribunal on 10 August 2018 to give evidence and present arguments. The additional applicant, Ms Woolim Choi, did not attend. There was no attendance for and on behalf of the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

6. The applicants were represented in relation to the review by their registered migration agent who was not present at the time of hearing.

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

   Background

8. The application was lodged on 26 August 2013. At the time of application, the applicant submitted a sponsorship Form 40 indicating she was sponsored by her aunt, the person with a medical condition requiring the care. The applicant later sought to amend her application to include two of her children as dependents.

9. On 1 November 2013 a new Form 40 was provided identifying Tae Hyun Kim as the sponsor; he was the spouse of the person requiring care, the applicant’s aunt. The original sponsorship form provided, completed by the aunt of the applicant, had not been supported by her spouse’s signature. The Department requested this in a letter to the applicant dated 11 October 2013. The sponsor form provided by Mr Tae Hyun Kim was not supported by his wife’s signature.

10. On 14 March 2014 an affidavit of support was provided. It stated the sponsor was Nam Soon Kim and that Tae Hyun Kim was the guarantor. The Affidavit of Support stated he was “financially able and willing to support my mother (sic) Nam Soon Kim for all the expenses including living cost, accommodation, carer service (sponsorship obligation) and other miscellaneous expense.” It was signed by Tae Hyun Kim and dated 27 February 2014.

11. On 10 April 2014 a decision was made to refuse the application on the grounds the applicant did not meet the legal requirements in cls.836.221 and 836.321 in Schedule 2 of the Regulations. The delegate was not satisfied the sponsorship in place at the time of application was still in force at the time of decision (cls.836.213 and 836.227). The delegate further found he was not satisfied that Regulation 1.15AA(1)(e)(i) was met (assistance required by resident cannot reasonably be obtained from any other relative in Australia), Regulation 1.15AA(1)(e)(ii) was met (assistance required by the resident cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia), and Regulation 1.15AA(1)(f) was met (applicant is willing and able to provide to the resident substantial and continuing assistance of the kind required). As the primary applicant did not meet the requirements, it followed that the additional applicants could also not meet the requirements.

12. The applicant sought a review of that decision at the Administrative Appeals Tribunal (the Tribunal).

13. On 24 May 2014 an updated Form 40 was provided to the Tribunal signed by both the sponsor, Nam Soon Kim, and her spouse, Tae Hyun Kim. Mr Kim has since deceased (July 2014).

14. On 5 August 2015 the Administrative Appeals Tribunal (differently constituted) remitted the matter to the department with a direction the visa applicant met cl.836.221 of Schedule 2 to the Regulations.

15. On 7 March 2017 the Department wrote to the applicant and advised further information was required in order to finalise the visa applications. Relevantly the applicant was asked to provide an Enduring Power of Attorney or Guardianship.

16. On 5 April 2017 a Form 40 was submitted, signed by Jonghee Han.

17. A letter dated 11 April 2017 was provided from Dr Mandy Goldfoot from Greenwich Village Medical Practice. In that letter she stated “Mrs Nam Soon Kim is permanently incapacitated and suffers from incurable cerebral amyloidosis. Her daughter, Jonghee Han is her primary carer and handles all her affairs.”

18. On 9 May 2017 the Department wrote to the applicant seeking comments on adverse information. On 7 March 2017 an email had been sent to the migration agent acting for the applicant requesting an updated Form 40 signed by the original sponsor, or if the sponsor was not capable of signing a Form 40, signed by a guardian or legal authority holder. It was noted in the letter that the sponsor’s medical condition meant she was not able to communicate. It was requested that any legal authority associated with the sponsor be provided to the Department. Further, the letter requested that if a legal authority was in place or a State Public Guardian had been appointed that a GP letter be provided confirming the sponsor understood the purpose of the legal authority.

19. A letter dated 2 June 2017 was received from the daughter of the sponsor, Jonghee Kim (Han). She explained that at the time of the submission of the two Form 40 forms dated 1 November 2013 and 24 May 2014, her mother understood the sponsorship undertaking, including the fact the sponsor was required to provide adequate accommodation and financial assistance for a period of up to two years from the date of grant. She went on to say her mother had a fall on 7 August 2010 and was diagnosed with Cerebral Amyloidosi. She stated it was her mother’s wish to be cared for by the visa applicant but she was not able to sign the form because of her physical disability. She stated that due to the sudden onset of the condition there had been no provision made for a Power of Attorney or Enduring Power of Guardian.

20. On 29 June 2018 a Form 40, signed by the sponsor’s daughter Jonghee Kim and dated 25 June 2018, was provided. Accompanying it were orders made for guardianship for Nam Soon Kim (the sponsor) in the NSW Civil and Administrative Tribunal Guardianship Division on 13 November 2017. Jonghee Kim was appointed as the guardian for a period of three years from 13 November 2017 to the extent necessary to carry out the functions of health care, medical and dental consent and to make decisions about the services to be provided to Nam Soon Kim.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Are the sponsorship requirements met?

21. Sponsorship is a fundamental concept underpinning family migration. The sponsor undertakes to ensure that their family member is supported during their initial settlement in Australia and hence does not become a charge on the wider Australian community.

22. 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. 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 (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).

23. Regulation 1.20(2)(a) specifies the obligations of a sponsor in relation to an application for a permanent visa (which includes an 836 Carer visa). While ‘capacity’ is not a criterion expressly required by the Act or Regulations for sponsorship approval, whether the sponsor had the capacity to make the undertaking appears to be implicit in assessing the sponsorship.

24. It is specified in Regulation.1.20 that if the applicant is in Australia, 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 that visa.

25. The Oxford dictionary defines ‘undertakes’ as to commit oneself to and begin (an enterprise or responsibility) or promise to do a particular thing. The Macquarie Dictionary definition includes warranting or guaranteeing to take on a task. ‘Obligations’ are defined as an act or course of action to which a person is morally or legally bound; a duty or commitment.

26. The Tribunal is satisfied, having regard to the plain dictionary meaning of 'undertakes' and 'obligations' that a sponsor commits to a course of action as detailed in r.1.20 (2). The Tribunal is further satisfied that if an individual lacks the requisite mental capacity to make such a commitment or guarantee they are unable to make a sponsorship undertaking. While there is no express requirement in the Act or Regulations that the Minister be satisfied that they understood the sponsorship undertaking, the plain meaning of 'undertake' requires that the person understand what it is they are undertaking to do.

27. Clause 836.227 requires that the sponsorship mentioned in cl.836.213 has been approved by the Minister and is still in force.

28. The Tribunal carefully considered the evidence on file as to whether the sponsor was able to undertake these obligations at the time of application:

    ·A statutory declaration dated 14 May 2014 from Jonghee Kim states her mother fell on 7 August 2010 and was diagnosed with an incurable Cerebral Amyloidosi. She was hospitalised for four months.

    ·A further statement from Jonghee Kim dated 24 May 2015 states her mother is paralysed on the left side with no movement. She has not been able to communicate in English since her stroke.

    ·On 2 April 2017 a letter from Jonghee Kim states her mother ‘understands to the best of her ability, but is unable to express this verbally nor sign the form due to her physical disability.’  The Tribunal was not able to ask Ms Kim what she based her assessment on as she was not available at the time of hearing.

    ·At the time of hearing the applicant said that the sponsor is not able to communicate, and she is not able to express herself. Any attempt at speech is rare and she is very soft and slow in her attempts. The applicant said she assessed the sponsor’s needs by her reactions; she has established rapport that way.

29. The Tribunal was mindful of the medical evidence provided after the Department had put the applicant on notice of its concerns as to the sponsor’s ability to understand the undertakings required of a sponsor. A letter dated 11 April 2017 was provided from Dr Mandy Goldfoot from Greenwich Village Medical Practice. In that letter she stated “Mrs Nam Soon Kim is permanently incapacitated and suffers from incurable cerebral amyloidosis. Her daughter, Jonghee Han is her primary carer and handles all her affairs.”

30. Further, the Tribunal was mindful, given the evidence from Jonghee Kim, as to whether the sponsor had signed the original Form 40 submitted at the time of application. The Tribunal considers it reasonable to infer from her letter dated 2 April 2017 that the sponsor had not signed the Form 40 submitted at time of application.

31. The Courts have held that the partial failure to fill in an approved form will not, of itself, render the application invalid and it would be necessary to consider whether the application, as made, still contained the information necessary to properly invoke the Tribunal’s jurisdiction and set in train the process of review (MZAIC v MIBP [2016] FCAFC 25). The Form 40 is a vehicle used to demonstrate that a person intends to sponsor another person, and understands the obligations that arise in doing so. In the absence of any medical evidence that the sponsor at the time understood and agreed to the undertaking, then the Tribunal is not satisfied that, at the time of application, the applicant was sponsored as required by the legislation and so does not satisfy cl.836.213.

32. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses, there is no material which would permit a finding that the applicant meets the prescribed criteria for the visa sought.

    DECISION

33. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Moira Brophy
    Member