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

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).
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.
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.
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.
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…

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 Hammoud (Migration)

Details

AGLC: Hammoud (Migration) [2021] AATA 2819
Case: [2021] AATA 2819
Decision Date: 21 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The dispute centred on whether the applicant met the sponsorship requirements under clauses 836.213 and 836.227 of the Migration Regulations 1994. The applicant's sponsor was her Australian relative, Ms Fatme Nasrallah Hammoud, who had provided a sponsorship undertaking. However, concerns were raised by the Department regarding Ms Hammoud's mental capacity to understand her sponsorship obligations, stemming from a Carer Visa Assessment Certificate and GP letters indicating dementia and memory issues.

The Tribunal was required to determine if the sponsorship requirements were met at the time of application and if the sponsorship remained in force and approved at the time of the decision. Specifically, the Tribunal had to assess whether Ms Hammoud's sponsorship undertaking satisfied clause 836.213, which requires sponsorship by an Australian relative who is at least 18 years old, and whether the sponsorship was approved and still in force under clause 836.227. The Tribunal also had to consider the impact of recent judicial decisions on the assessment of a sponsor's capacity to fulfil their obligations.

The Tribunal's reasoning was significantly influenced by the Full Federal Court's decision in *Babar v Minister v Immigration, Citizenship, Migrant Services and Multicultural Affairs*, which established that for sponsorship purposes, the giving of the undertaking is sufficient, and an assessment of the sponsor's capacity to fulfil the undertaking is not required. Applying this principle, the Tribunal found that Ms Hammoud, having signed the sponsorship form, had provided the undertaking as required by clause 836.213. The Tribunal also considered *Lo v MICMSMA*, which affirmed that the sponsor must be identified at the time of application and that the sponsorship must be approved and remain in force at the time of decision. Despite the earlier concerns about Ms Hammoud's cognitive state, the Tribunal concluded that the sponsorship was in force and approved, and therefore the applicant met clauses 836.213 and 836.227.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the sponsorship criteria under clauses 836.213 and 836.227 were met. This meant that the Department was to proceed to consider the remaining criteria for the Subclass 836 visa.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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? 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. 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)." 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. 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.

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 836 visa.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; and·cl 836.227 of Schedule 2 to the Regulations. Meena SripathyMember

Ratio Decidendi

Legal Principle Established

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 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. 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. 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). 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]. 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