Hammoud (Migration)

[2021] AATA 2819

Hammoud (Migration) [2021] AATA 2819 (21 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nariman Hammoud

CASE NUMBER:  2008255

HOME AFFAIRS REFERENCE(S):          CLF2020/5720

MEMBER:Meena Sripathy

DATE:21 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·cl 836.213 of Schedule 2 to the Regulations;

·cl 836.227 of Schedule 2 to the Regulations.

Statement made on 21 June 2021 at 1:31pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsor’s capacity to understand sponsorship obligations – improvement in sponsor’s health due to applicant’s help – oral evidence obtained from sponsor at hearing – sponsor had mental capacity to give the undertaking – GP’s recent assessment of mental health as reasonable – sponsor’s confirmation at hearing to support visa application – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5CB, 5F, 65
Migration Regulations 1994, rr 1.03,1.15A; Schedule 2, cl 836.213, 836.227

CASES
Babar v MICMSMA [2020] FCAFC 38
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 29 April 2020 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).

2. The applicant applied for the visa on 13 February 2020, sponsored by her mother, Ms Fatme Hammoud. 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 836.227.

3. The delegate refused to grant the visa on the basis that cl 836.227 was not met because, placing greater weight on the evidence relating to the sponsor’s medical conditions contained in the Carer Visa Assessment Certificate over other evidence submitted, the delegate was not satisfied at the time of decision, that the sponsor had capacity to understand her sponsorship obligations and for that reason the delegate was unable to approve the sponsorship and the applicant does not meet cl.836.227.

4. On 21 May 2021, the Tribunal invited the applicant to provide submissions and supporting evidence addressing cl.836.227 and to address the judgement in Babar v MICMSMA [2020] FCAFC 38 which may be relevant to this issue.

5. The applicant provided a response on 31 May 2021, stating that the mental status of her mother, the sponsor, is totally fine.  She has shown a great development since the applicant has started looking after her and is totally alert as to person, time and place though she still need a lot of support for her physical issues.   The following documents were submitted in support:

   ·Medical certificate dated 24 May 2021 from Dr Maha Mikhail regarding Fatme Hammoud – stating health issues of which she receives treatment and current medications

   ·Copy and Translation of Divorce relating to applicant given on 20 November 2019

   ·Family Registration Extract evidencing relationship between sponsor and applicant

   ·Sponsor’s Lebanese Identity Card and translation

6. The applicant appeared before the Tribunal by video over the MS Teams platform on 21 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Fatme Hammoud. Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the visa applicant meets cl. 836.227 at time of decision.  As this clause refers specifically to the sponsorship mentioned in cl.836.213, the Tribunal has also considered this time of application criteria. 

   Are the sponsorship requirements met?

9. 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).

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

11. At the time of lodgement of the application, the applicant provided a sponsorship form (Form 40) signed by Ms Fatme Nasrallah Hammoud, who is the Australian relative requiring care.  She also provided a Carer Visa Assessment Certificate (CVAC) dated 21 January 2020 relating to the sponsor. In this document, the sponsor was given a score of 10 points for ‘Dementia’.  The CVAC refers to two letters from the sponsor’s treating GP, Dr Maha Mikhail dated 16 December 2016 and 11 December 2019 and included observations of the impact of the sponsor’s  medical conditions on her ADLs, recording “ Details of impairment: Dementia - she has been having issues with her memory and orientation over the last few years. She isn't orientated to time, place nor person and mistook me as her own son. She wasn't aware of which country she was in and didn't know her age. She forgets whether she has taken her medications for the day and would keep asking her daughter to administer her medications. Due to the dementia, she is unable to perform her activities of daily living and would self-neglect her personal hygiene, meals and medications if not for her daughter being around. There is at least a moderate impact of this condition on her brain function (10)."

12. This information raised a concern for the delegate about the sponsor’s capacity to understand her sponsorship undertaking and on this basis, on 20 February 2020, the Department wrote to the applicant to invite further evidence to address these concerns.

13. On 17 March 2020 the applicant provided:

    ·A letter from Dr Maha Mikhail dated 24 February 2020

    ·A letter from Nagui Elwasfi, NAATI accredited interpreter and translator

    ·A submission from the migration agent

    ·A copy of a Form 40 Sponsorship Undertaking signed by the sponsor on 10 March 2020.

14. On 23 March 2020 the Department wrote again to the applicant to comment on the possibility the Department would not approve the sponsorship because of contradictory opinions in the CVAC and her GP’s letters as to her capacity to understand the sponsorship obligations. The applicant responded on 27 April 2020 with a further letter from Dr Maha Mikhail dated 24 April 2020 and a submission from the agent.

15. The delegate considered the evidence and submissions made, but decided to place significant weight on the content of the CVAC on the basis it was based on an assessment by an independent MOC, that the sponsor did not have capacity to understand her sponsorship obligations as at the time of this decision and on that basis the delegate was not satisfied the sponsorship was in effect at time of decision. 

16. With respect, the Tribunal considers the delegate’s approach to the sponsorship issue to be incorrect in law and fact. 

    Evidence obtained at Tribunal hearing

17. At the hearing the Tribunal took oral evidence from the sponsor., who appeared by video. She was assisted by the interpreter and responded to the Tribunal’s questions directly, lucidly and without hesitation.  She sought clarification as necessary and generally demonstrated no difficulty understanding the Tribunal’s questions. The Tribunal asked her to confirm her name, address and current living arrangements. She gave her name, spelling to the Tribunal in English, and was able to read her address out.  She told the Tribunal she has been living at this address for the past 9 months and was at her previous address for some 28 years before that. She moved because the Department of Housing wanted to sell that property and relocated her to this new property.  She lives with the applicant, who also lived with her at the previous address. The sponsor confirmed the applicant is her daughter.  She told the Tribunal her family composition, that has seven children, two of whom are in Lebanon and five, including the applicant, in Australia. The sponsor is aware that she sponsored the applicant for this visa.  She knew she signed a sponsorship form for this purpose.  She told the Tribunal she saved money to bring the applicant here from Lebanon and wants her to stay here to care for her.  The applicant has been caring for her since she arrived.  She sleeps next to her and wakes in the night to assist her.  She does all the house chores, cooking, cleaning and shopping. The sponsor said she is unable to do anything because of her health conditions and physical limitations and the applicant is the person who supports her.  The sponsor told the Tribunal  Dr Maha Mikhail is her GP for the past 25 years.  Apart from this doctor, she has seen another specialist for a stomach issue and an orthopaedic surgeon in the past. The sponsor confirmed that she supports the applicant to be her carer and she has been looking after her since her arrival. When asked how the applicant has been financially supported, she said her daughter supports her.

18. The Tribunal also took brief evidence from the applicant.  She confirmed her address, and that she lives with the sponsor and has been living with her since she came to Australia in 2019. She is separated from her husband in Lebanon for over 7 years and he has since remarried and has a new family. She has a son and daughter in Australia and children in Lebanon. She is financially supported in Australia by her children and also her two brothers who live here.

19. The Tribunal explained to the applicant that it is only considering in this review the sponsorship issue on which the application was refused, and if the review is successful, the application will be returned to the Department to  consider the remaining criteria, including the remaining requirements of the carer criteria.

    FINDINGS AND CONSIDERATION

20. For the following reasons the Tribunal has reached a different conclusion on the sponsorship issue to that of the delegate.  It determines that the applicant is sponsored as required by cl.836.213 and finds at time of decision, the sponsorship is still in force and is approved, and the applicant meets cl.836.227.

21. The evidence in the present case is that the applicant was sponsored by Ms Fatme Nasrallah Hammoud, who is the Australian relative that the applicant seeks to care for.  A Form 40 Sponsorship for Migration to Australia was signed by Ms Hammoud on 22.01.2020 and submitted with the application. The Tribunal is satisfied that Ms Hammoud has turned 18, having been born in 1944, and that she is a settled Australian citizen and is usually resident in Australia.

22. Regulation 1.20 defines a sponsor as ‘a person who undertakes the obligations stated in subregulation (2)’, which in the case of a carer visa, are ‘to assist the visa applicant to the extent necessary, financially and in relation to accommodation for two years.[1]

    [1] Reg 1.20(1),(2).

23. Since the delegate’s decision, there has been relevant judicial consideration of these issues.  Specifically, the caselaw establishes that at time of application the giving of the undertaking is all that is required for a person to be a sponsor for the purposes of these criteria. In Babar v Minister v 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.[2]   Although this judgment concerned sponsorship for a partner visa, the Tribunal observes that carer visas feature the same sponsorship framework. 

    [2] [2020] FCAFC 38 at [36].

24. The Tribunal has also considered the judgement in Lo v MICMSMA,[3] of a single judge, Rares J.  This case concerned a Subclass 836 carer visa application and the issue under consideration was whether the relevant sponsor could be identified at a time after the visa application was lodged. Rares J held that cl 836.213 requires that an applicant is sponsored at time of application and cl 836.227 requires that the sponsorship put forward at the time of application has been approved and is still in force at time of decision.  Specifically, the judgement establishes that cl. 836.213 does not allow the sponsor to be identified (or changed) after the time of visa application.  However, relevantly to the present matter, at [27] the Court observed that the Tribunal made ‘an unchallenged finding’ that it was not satisfied, when he signed the sponsorship form in 2012, the father understood the nature of the sponsorship obligations and found ‘no error’ in this aspect of the Tribunal’s decision. 

    [3] [2020] FCA 895

25. While on the one hand, this may suggest it is open to consider the issue of the sponsor’s mental capacity to give the undertaking in determining whether the visa applicant is sponsored, the Tribunal considers this does not sit well with the conclusions of the Full Federal Court in Babar, referred to above, that giving the undertaking simpliciter is sufficient (at [36]) and that no issue arises involving an assessment of the capacity of the sponsor to fulfil the undertakings.  The Tribunal observes that Rares J in Lo noted that the Tribunal’s finding on the mental capacity of the sponsor was unchallenged, and the issue of the Tribunal’s assessment of mental capacity in the context of cl.836.213 appears to have not been specifically argued before the Court or Circuit Court before it.  Notably, there is no mention in Rares J’s decision of the judgement of the Full Court that was handed down only several months prior.  In these circumstances, the Tribunal is inclined to treat the Court’s observation on this point as just that, obiter; the ratio of the decision being that cl.836.213 does not allow the sponsor to be identified after the time of visa application.

26. In the Tribunal’s view, it is not clear on the present state of judicial authority that it is open to assess the mental capacity of the sponsor in giving the undertaking, once it is made, given that Babar makes clear no issue arises as to the sponsor’s capacity to fulfil the undertakings.

27. Therefore, on the authority of the Full Federal Court in Babar, the Tribunal finds, on the evidence of the signed Form 40 Sponsorship dated 20.1.2020, the applicant was sponsored at time of application and meets cl.836.213. 

28. However, if the Tribunal is wrong on the issue of whether it is open to assess the sponsor’s mental capacity to give the undertaking, the Tribunal has a different view from the delegate about the sponsor’s mental capacity in signing the Sponsorship Form 40 in 2020 on the available evidence.  Specifically, the Tribunal has a different assessment of the evidence provided to the Department.  It also has had the benefit of taking oral evidence from the sponsor at hearing and on this basis it is satisfied that she has, and had at the time she signed the Sponsorship Form, mental capacity to give the undertaking.

29. The Tribunal notes the established common law position is that one is presumed to have capacity, unless there is reason to question it. [4] In the context of contract law generally where capacity arises as an issue, the extent of capacity which must be possessed has been found to be  not fixed but relative to the particular contract, instrument or transaction in question.[5]  Each party must have such soundness of mind as to be capable of understanding the general nature of what he or she is doing by the participation and the capacity to understand the transaction when it is explained.[6] 

    [4] When a Client’s Mental Capacity is in Doubt, A practical guide for Solicitors, The Law Society of NSW, 2016 ,  p6,

    [5] See In the Estate of Doull (1881) 7 VLR (IP & M) 70; Gibbons v Wright (1954) 91 CLR 423 Neutral treatment indicated at 437-9; [1954] ALR 383; (1954) 28 ALJ 111; BC5400600 per Dixon CJ, Kitto and Taylor JJ; Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511 at 1533 per Chadwick LJ (Potter LJ agreeing), CA. See also Scott v Wise [1986] 2 NZLR 484

    [6] See Gibbons v Wright (1954) 91 CLR 423 Neutral treatment indicated at 437-9; [1954] ALR 383; (1954) 28 ALJ 111; BC5400600 per Dixon CJ, Kitto and Taylor JJ; Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511 at 1533-4, 1535 per Chadwick LJ (Potter LJ agreeing), CA. See also Ford by his tutor Watkinson v Perpetual Trustees Victoria Ltd (2009) 75 NSWLR 42 Neutral treatment indicated at 57; 257 ALR 658; [2009] NSWCA 186; BC200905872 at [59] per Allsop P and Young JA

30. Applying these principles to the present context, the capacity issue must be considered in the context that this is an application for a carer visa, and the undertaking  is given by a sponsor to assist a relative who is seeking to care for them, as necessary, financially and in respect of accommodation.

31. The delegate in this case placed significant weight on information contained in the Bupa Medical Visa Services Carer Visa Assessment Certificate (CVAC) dated 21 January 2020, and preferred this information over the evidence of Dr Maha Mikhail’s letters of  24.2.2020 and 24.42020 that were provided specifically in response to the concern about her capacity raised by the Department. The Tribunal observes the reference in the CVAC to earlier letters by Dr Maha Mikhail’s dated 16.12.2016 and 11.11.2019, however these were not included in the Department file and it does not appear the delegate had reference to these documents.  In any event, the Tribunal is of the view that the CVAC, and medical evidence provided for the carer assessment, are provided to assess the subject person’s need for care assistance in attending to activities of daily life and is not an assessment of her mental capacity to make decisions or give undertakings.

32. On the other hand, Dr Maha Mikhail’s letters of 24 February 2020 and 24 April 2020 were specifically provided after concerns relating to the issue of the sponsor’s capacity to give the sponsorship was raised by the Department. Dr Mikhail has most recently, in her letter of 24 May 2021, confirmed the sponsor’s mental state examination as ‘quite reasonable’.  Before the Tribunal the sponsor was able to answer basic questions, including her name, address, and current living arrangements.  She was able to explain the history of her recent change of address, describe some of her health issues and the assistance the applicant has been providing her.  The Tribunal considers her oral testimony is consistent with the professional assessment of her mental capacity provided by her long term treating GP, Dr Mikhail in the numerous letters she has given addressing this matter. 

1. The question of capacity is decision and situation specific and depends on the particular decision or situation under consideration. Clearly, a person with a disability or medical impairment can still have decision-making capacity. In the present case, the Tribunal does not accept that the reference in the CVAC to the sponsor’s condition of dementia, or comments made therein (described above at paragraph 11) can or should be preferred over the professional opinion of her long term treating GP given specifically on the issue of the sponsor’s capacity to sign the sponsorship form in January 2020.  Dr Mikhail confirmed that the sponsor suffers from dementia, and acknowledged that her memory and cognitive ability is compromised,  however expressed the opinion that she nevertheless retains capacity to understand and make decisions including relating to financial matters. Having regard to the sponsor’s oral evidence at hearing, the Tribunal is inclined to accept this opinion, and on this evidence the Tribunal is satisfied that the sponsor had mental capacity when signing the sponsorship form in January 2020 and was capable of understooding the undertaking she gave.  

2. For these reasons, the Tribunal is satisfied the applicant was sponsored as required at time of application and satisfies cl.836.213.

   Sponsorship is still in force and approved at time of decision

3. The sponsor confirmed at hearing that she continues to support the applicant to be her carer and supports the visa application.  Therefore, the Tribunal finds the sponsorship continues to be in force at time of decision.

4. Having accepted that the sponsor gave an undertaking, which is still in force, the next issue for consideration is whether to approve the sponsorship, at time of decision. The issue of sponsorship approval was specifically considered by the Full Federal Court in Babar and was described as a discretion in respect of which there is no reference to content in the Regulations.[7]   The Full Court made clear in that decision that the Tribunal would be in error to apply the Department’s  policy as set out in PAM3 (the relevant text of which referred to in that judgement appears not to have been amended since then) as it is based on an erroneous view of the meaning of r. 1.20 and is not formulated on the basis that it is giving effect to the approval power: at [38]-[40]. 

   [7] See Babar v Minister v Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38 at [39]

5. In the absence of any prescribed matters to consider or lawful policy guidance, it appears to the Tribunal that there are two possible ways to approach this issue.  The first, given that the sponsorship is still in force, and the regulations prescribe no specific limitations, is that the sponsorship must be approved.  That is, in the absence of anything in the Regulations to prescribe limitations on sponsorship, the sponsorship if still in force, must be approved.  This is consistent with the regulatory scheme as a whole, in that the undertakings are not in fact enforceable and therefore, there is no reason why they should not be approved.

6. Alternatively, as alluded to in Babar, the Tribunal has a discretion to exercise, and in doing so, can consider relevant matters.  Matters the Tribunal considers to be relevant in the present case include the following: the Tribunal is satisfied the evidence indicates the sponsor is fully aware of, supports and understands that she has sponsored the applicant for the purposes of a carer visa. The evidence indicates the applicant lives with the sponsor and it is clear that her accommodation is covered by these living arrangements.  Both she and the sponsor gave evidence that she has been financially supported by her daughter and siblings while she has been in Australia to date and there is no reason to believe that this support will not continue.  There is no other information before the Tribunal to indicate or suggest it will be necessary to provide financial or accommodation assistance for the applicant or any other basis for why the sponsorship should not be approved. 

7. For these reasons, the Tribunal approves the sponsorship and finds the applicant meets cl.836.227.

8. 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 836 visa.

   DECISION

9. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

   ·cl 836.213 of Schedule 2 to the Regulations; and

   ·cl 836.227 of Schedule 2 to the Regulations.

   Meena Sripathy
   Member