HAR (Migration)

[2021] AATA 2329

HAR (Migration) [2021] AATA 2329 (7 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tse Ying HAR

VISA APPLICANTS:  Mr Zhenhua XIA
Ms Jiamin TAN
Ms Yongshan XIA
Ms Xiaoshan XIA
Master Rurong XIA

CASE NUMBER:  2002129

HOME AFFAIRS REFERENCE(S):          OSF2013/024727

MEMBER:Hugh Sanderson

DATE:7 April 2021

PLACE OF DECISION:  Sydney

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.116.212 of Schedule 2 to the Regulations; and

·cl.116.222 of Schedule 2 to the Regulations.

Statement made on 7 April 2021 at 1:07pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 116(Carer)– sponsorship requirements met –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, Schedule 2, cls 116.212, 116.222

CASES
Babar v Minister v Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38

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 9 January 2020 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 20 August 2013. 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 (the Regulations). In the present case, the applicants are 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.

3. The delegate refused to grant the visas on the basis that cl.116.222 was not met because the delegate was not satisfied the sponsor had the mental capacity to understand the sponsorship requirements and therefore the sponsorship was not approved by the Minister.

   Background

4. The first named visa applicant (hereinafter “the visa applicant”) applied for the visa on the basis of being the carer of his father, the review applicant. The second named visa applicants are his wife and children.

5. The review applicant was born in China and is currently 81 years old. He became an Australian citizen in 1996. He lives with his wife who is currently 81 years old. The sponsor has been diagnosed as suffering from multiple medical conditions. This included a brain tumour and dementia diagnosed in 2005, bilateral deafness, hypertension, osteoporosis, lower back pain and hyperparathyroidism. A Carer Visa Assessment Certificate dated 18 April 2013 found that he had an impairment rating of 30.

6. The Department requested the visa applicant provide information to show that the sponsor had the capacity to understand the sponsorship undertakings or that a person had been appointed with the legal authority to make health, lifestyle and financial decisions on behalf of the sponsor. The visa applicant responded by providing the following:

   ·An enduring power of attorney signed by the review applicant appointing Jenny Man Kuen Ha as his attorney dated 5 October 2019;

   ·Certificate from Dr Chan stating that the review applicant appeared “broadly speaking” to understand the “major” contents and effects of the signing of the power of attorney dated 5 October 2019;

   ·A letter from Ms Ha, the person appointed as the sponsor’s attorney, authorising the sponsor’s agent to act in relation to the issue of his legal capacity; and

   ·Submissions from the visa applicant’s agent claiming that by the appointment of the attorney the necessary time of decision legal requirements had been met.

7. The delegate who considered the application noted the following issues:

   ·As the sponsor’s doctor provided a caveat as to the sponsor’s capacity to understand his signing of the power of attorney and the diagnosis of dementia suffered by the sponsor since 2005, it indicated the sponsor did not have the required mental capacity to understand the contents and effects of signing the power of attorney and enduring guardianship;

   ·As the sponsor did not have the mental capacity to understand the effects of the power of attorney and enduring guardianship, that document was void; and

   ·The sponsor does not have the mental capacity to understand the effects of any sponsorship undertakings and there is no person who is validly appointed to make decisions on his behalf.

8. Taking these matters into account, the delegate was not satisfied that the sponsorship was in effect at the time of the decision as the sponsor did not have the capacity to understand the undertakings he is required to give and therefore the criteria in cl.116.222 was not met. Accordingly, the delegate refused the application of the visa applicant. As the visa applicant did not meet the primary criteria for the grant of the visa, the applications of the second named visa applicants were refused as they were not members of the family unit of a person who met the primary criteria.

   Information to the Tribunal

9. The review applicant provided further documents to the Tribunal including the following:

   ·Guardianship Order under the Guardianship Act 1987 (NSW) from the NSW Civil and Administrative Tribunal dated 10 July 2020 making a guardianship order for the sponsor, appointing Ms Ha as the guardian;

   ·Financial Management Order under the Guardianship Act 1987 (NSW) from the NSW Civil and Administrative Tribunal dated 10 July 2020 appointing Ms Ha as the financial manager of the sponsor’s estate;

   ·Statutory declaration of Ms Ha confirming that as the appointed guardian of her uncle, Tse Ying Har, she was giving the undertakings in conformity with the form 40SP and had access to the financial resources to meet the expenses and accommodation needs of the visa applicant;

   ·Term deposit of the sponsor’s wife showing savings of in excess of $100,000 and a statutory declaration of the sponsor’s wife indicating that these funds would be available to the visa applicants; and

   ·Joint bank account statement of the sponsor and his wife showing payments of a DSS pension.

10. In light of the information now before the Tribunal, the Tribunal has proceeded to a decision without the need for a hearing.

11. The review applicant was represented in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Are the sponsorship requirements met at the time of the application?

14. 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. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.

15. The evidence before the Tribunal, which the Tribunal accepts, is that at the time of the application the visa applicant was sponsored by the review applicant who is the visa applicant’s father and was over the age of 18. He is an Australian citizen and a settled resident of Australia.

16. In assessing whether the time of application criteria in cl.116.212 are met, the Tribunal adopts the decision in Huang case number 1815336 (differently constituted) where the following was stated:

    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]

    Since the delegate’s decision, there has been some 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.

    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.

    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 necessarily 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.

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

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

    [3] [2020] FCA 895.

17. The Tribunal is satisfied that at the time of the application the review applicant was the nominated sponsor of the visa applicant for the Carer visa. The Tribunal notes the review applicant as the sponsor suffered dementia at that time, however, simply a fact that a person suffers from dementia does not necessarily mean he or she does not have the mental capacity to make other decisions in their life. In any event, the Tribunal is satisfied that the decision in Babar means that no issue arises as to a sponsor’s capacity to fulfil the undertakings. All that is necessary is that the visa applicant is sponsored by the Australian relative who has turned 18.

18. Accordingly, the Tribunal is satisfied that at the time of the application the visa applicant was sponsored as required by the legislation and satisfies cl.116.212.

    Are the sponsorship requirements met at the time of the decision?

19. At the time of the decision, the visa applicant is required to meet cl.116.222 which requires that the sponsorship referred to in cl.116.212 has been approved by the Minister and is still in force.

20. The Department refused the application on the basis that it found the review applicant was suffering from dementia and therefore was not able to make the required sponsorship undertakings. The delegate found further that they were not satisfied the enduring power of attorney and enduring guardianship were valid, finding that as the review applicant was suffering from dementia he did not have the mental capacity to understand the content and effect of those documents. Accordingly, the delegate found those documents to be void. As the delegate found those documents were void and the review applicant lacked the mental capacity to understand the sponsorship undertakings and obligations the delegate found the visa applicant did not meet cl.116.222.

21. The Tribunal does not pass comment on whether the enduring power of attorney and enduring guardianship provided by the lawyers acting for the review applicant were valid when signed and therefore valid at the time of the delegate’s decision. The Tribunal has noted the submissions made by the lawyer for the visa applicant and review applicant made to the Department.

22. Documentation has now been provided showing that a Financial Management Order and Guardianship Order were made by the NSW Civil and Administrative Tribunal on 10 July 2020. The review applicant’s niece, Jenny Man Kuen Ha, has been appointed the guardian for the review applicant and has been appointed as the financial manager of his estate. The Tribunal finds that at the time of this decision Ms Ha has the power and authority to make all decisions on behalf of the review applicant, including decisions relating to the management of his financial affairs.

23. Documentation has been provided as to the financial circumstances of the review applicant. Ms Ha, on behalf of the review applicant, has reaffirmed the undertaking given by the review applicant as the sponsor of the visa applicants in relation to the review applicant’s financial support and accommodation for the required period. The evidence provided as to the financial circumstances of the review applicant supports a finding that he is capable of meeting those undertakings.

24. In light of the orders made by the NSW Civil and Administrative Tribunal appointing Ms Ha as the guardian and financial manager of the estate of the review applicant, the Tribunal is satisfied that Ms Ha, as the legal representative of the review applicant and on his behalf, has the capacity to make the necessary undertakings on behalf of the review applicant. In light of the evidence provided as to the financial capacity to provide financial assistance and accommodation to the visa applicants and other aspects of a sponsor’s obligations, the Tribunal finds that the sponsorship should be approved. The Tribunal finds that the sponsorship of the visa applicant by the review applicant is still in force as confirmed by Ms Ha on behalf of the review applicant.

25. The Tribunal finds that the sponsorship of the visa applicant referred to in cl.116.212 is approved and is still in force. Accordingly, the Tribunal finds the criteria in cl.116.222 are met.

26. 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.

27. As the visa applicant meets these criteria for the grant of the visa, the Tribunal remits the applications of the second named visa applicants for reconsideration in full.

    DECISION

28. 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.116.212 of Schedule 2 to the Regulations; and

    ·cl.116.222 of Schedule 2 to the Regulations.

    Hugh Sanderson
    Member