Ha (Migration) - [2021] AATA 3838

Ha (Migration) [2021] AATA 3838 (15 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Van Tao Ha
CASE NUMBER:  1820123
HOME AFFAIRS REFERENCE(S):          CLF2016/42222
MEMBER:Justin Owen
DATE:15 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 15 July 2021 at 10:34am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance reasonably obtained from welfare, hospital, nursing or community services – sponsorship requirements – sponsor’s capacity to fulfil the undertakings – mental capacity at the date of application – Enduring Guardianship made before application – doctor’s recanting of earlier evidence – no attempts to obtain welfare, hospital, nursing or community services – home care package offer withdrawn – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cls 836.213, 836.221, 836.227, 838.212; 1.03, 1.15, 1.20
Social Security Act 1991
CASES
Babar v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38
Biyiksiz v MIMA [2004] FCA 814
Gibbons v Wright [1954] HCA 17
Hon Anh Vuong v MIAC [2013] FCCA 274
Lam v MIBP [2013] FCCA 1263
Lo v MICMSM [2020] FCA 895
Sefesi v MIBP [2016] FCCA 975
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 10 July 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 13 July 2016. 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 (Cth) (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 836.221.
The delegate refused to grant the visa on the basis that cl 836.221 was not met because the delegate was not satisfied the applicant had demonstrated that the assistance required by the sponsor could not reasonably be obtained from welfare, hospital, nursing or community services in Australia. Therefore, the applicant did not meet r. 1.15AA(1)(e)(ii) and was unable to meet the requirements of a Carer as defined in regulation 1.15AA. The delegate furthermore 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.
The applicant appeared before the Tribunal on 2…

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 Ha (Migration)

Details

AGLC: Ha (Migration) [2021] AATA 3838
Case: [2021] AATA 3838
Decision Date: 15 July 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an appeal by Mr Ha concerning the refusal of his application for a Subclass 836 (Carer) visa. The applicant sought to migrate to Australia to care for his mother, Mrs Thi Gai Nguyen, who is an Australian resident. The delegate had refused the visa application, and the applicant sought review of this decision by the Tribunal.

The primary legal issues before the Tribunal were whether the sponsorship requirements for the Carer visa were met, specifically concerning the sponsor's mental capacity at the time of the application and the validity of the legal instruments purporting to appoint a decision-maker on her behalf. The Tribunal was required to determine if the sponsor had the capacity to understand the sponsorship undertaking and if an appropriate legal authority was in place to make health and lifestyle decisions for her.

The Tribunal affirmed the delegate's decision, finding that the sponsorship requirements were not met. The delegate had concerns regarding the sponsor's mental capacity, evidenced by a medical certificate diagnosing Alzheimer's Dementia and noting her disorientation and difficulty with instructions. While the applicant provided an Enduring Power of Attorney and an Appointment of Enduring Guardian, the delegate was not satisfied that these documents were signed by the sponsor prior to her diagnosis. Consequently, the Tribunal concluded that there was no appropriate legal authority in place to make decisions on the sponsor's behalf, which was a prerequisite for the sponsorship to be considered valid and in force.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEAre the sponsorship requirements met? 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 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). Clause 836.227 requires that the sponsorship mentioned in Clause 836.213 has been approved by the Minister and is still in force. Delegate’s decision The applicant was born in Vietnam on 22 June 1959. He is the son of the sponsor and Australian resident, Mrs Thi Gai Nguyen born 12 May 1936 who he seeks provide care to. The applicant is married but states in his application form that his partner will not be migrating with him. The applicant has three adult children, including a daughter who resides in Australia and is an Australian citizen, plus two sons who reside in Vietnam and are Vietnamese nationals. In the decision record the applicant provided the Tribunal, the delegate noted on 13 July 2016 the applicant lodged a Carer visa application, including a Form 40 ‘Sponsorship for migration to Australia’, purportedly signed by the sponsor Mrs Thi Gai Nguyen. Also submitted at this time was medical evidence which attested to the sponsor’s medical diagnosis of Alzheimer’s Dementia. The delegate noted the Carer Assessment Visa Certificate (CVAC) dated 29 June 2016 which rated the sponsor 60 points, including 30 points for Alzheimer’s Dementia and noted the sponsor “takes one step instructions, if explained slowly with her body language” The certificate went on to state that the sponsor was “Not orientated in time and place and has difficulty remembering her daughters.” The delegate stated that they had concerns the sponsorship could not be considered to be in force if the sponsor did not have the capacity to understand the sponsorship undertaking, and if there was no legal authority in place conferring power on an appointee to make health and lifestyle decisions pertaining to the sponsor. The applicant subsequently provided, after requests by the delegate, an Enduring Power of Attorney purportedly signed on 5 May 2016 and an Appointment of Enduring Guardian, again purportedly signed on 5 May 2016. The delegate was not satisfied that the Enduring Guardianship was signed by the sponsor prior to her diagnosis with Alzheimer’s Dementia and was therefore not satisfied the appropriate legal authority was in place.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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