HUANG (Migration)

[2021] AATA 354

HUANG (Migration) [2021] AATA 354 (11 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yiqiang HUANG
Master Shangli HUANG
Mrs Huiqing ZHENG

CASE NUMBER:  1815336

HOME AFFAIRS REFERENCE(S):          CLF2016/98065

MEMBER:Meena Sripathy

DATE:11 February 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas 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.

Statement made on 11 February 2021 at 4:30pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – members of family unit – sponsor’s capacity to understand sponsorship obligations and fulfil undertaking – presumption of capacity – no requirement for assessment of capacity – previous carer visa assessment certificates did not assess capacity – recent opinions of treating geriatrician, psychiatrist and solicitor – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulation 1994 (Cth), rr 1.15, 1.15AA(3), 1.20, Schedule 2, cls 836.213, 836.227

CASES
Babar v MICMSMA [2020] FCAFC 38
Gibbons v Wright (1954) 91 CLR 423
In the Estate of Doull (1881) 7 VLR (IP & M) 70
Lo v MICMSMA [2020] FCA 895
Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511

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 22 May 2018 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 21 December 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 (the Regulations). In the present case, the first named applicant (the applicant) is seeking to satisfy the primary criteria for the grant of a Subclass 836 visa. The remaining applicants seek to satisfy secondary criteria as members of the applicant’s family unit. 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 visas on the basis that cl.836.227 was not met because, relying on the evidence relating to the sponsor’s medical conditions contained in the Carer Visa Assessment Certificate, the delegate was not satisfied that the sponsor had capacity to understand his sponsorship obligations at time of application and consequently the delegate concluded she was not satisfied the sponsorship is in effect at time of decision and the applicant does not meet cl.836.227.

4. On 18 August 2020, on constitution of the matter to the present Tribunal, the applicant was invited to provide submissions and supporting evidence addressing cl.836.227 and specifically invited to address the judgement in Babar v MICMSMA [2020] FCAFC 38 which may be relevant to this issue.

5. The applicant’s representative provided a response on 1 September 2020, arguing that the sponsor retains the capacity to understand the obligations and undertakings of the sponsorship and submitted the following documents in support:

   ·Letter dated 23 September 2017 from Dr Ernst Tam, Consultant Geriatrician, provided previously to the Department, in which Dr Tam provides an opinion, having reviewed the sponsorship undertakings with the sponsor that day, that he has mental capacity to understand the obligations of sponsoring his step son, the visa applicant, as his carer, and that since 27 July until now, he understands the obligations and undertakings made at time of application.

   ·Letter dated 19 February 2020 from Dr Charles Chan, Consultant Psychiatrist, to whom the sponsor was referred for an assessment as to his capacity to make an informed decision in relation to the sponsorship given his diagnosis of dementia.  Dr Chan assessed Mr Wong and considered the reports of Dr Tam dated 16 December 2013 and 23 September 2017 previously provided to the Department.  He stated his opinion that he was satisfied Mr Wong understands his obligations and undertaking at the time the carer visa was lodged.

   ·Letter dated 13 September 2018 from Jeffry Wong, Solicitor, Brighton Lawyers, stating that the writer interviewed Mr Wong for 30 minutes. The writer was of the opinion, having posed specific questions to Mr Wong, that he understood the questions and provided reasonable answers. 

   ·Statutory Declaration by Mr Pak Chung Wong dated 4 November 2019, in the presence of Dr Adrian Tai, GP, confirming his sponsorship of the visa applicant and his family. 

6. Departmental ISCE records before the Tribunal indicate that the visa applicant applied for an Other Family (Migrant) Class BO Subclass 116 Carer visa on 20 March 2014 offshore.  This application was assessed as meeting the core criteria (r.1.15AA met) on 6 March 2017 and was placed in a queue.  Post queue processing of the application recommenced in 2019 and on 7 April 2020, an officer of the Department determined that cl.116.222 (the equivalent criteria to cl.836.227 for the onshore application) was met, having regard to new evidence provided, being the letter dated 19 February 2020 from Dr Charles Chan. ISCE records before the Tribunal indicate no further progress on that application since that date.

7. The Tribunal notes that the finding on cl.116.222 is not binding on the present Tribunal. The  two applications are assessed separately on the basis of the information and circumstances at the time of the respective decisions.  It is however, noted by the Tribunal. 

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. 

9. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Are the sponsorship requirements met?

    Applicant is sponsored at time of application

11. 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).

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

13. The delegate found, on the evidence provided in support of the carer visa application, that the sponsor did not have capacity to understand his sponsorship obligations at time of application and on that basis the delegate was not satisfied the sponsorship was in effect at time of decision.  With respect, the Tribunal considers the delegate’s approach to the sponsorship issue to be incorrect in law and fact. 

14. For the following reasons it has reached a different conclusion and 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.

15. The evidence in the present case is that the applicant was sponsored by Mr Pak Chung Wong, who is the Australian relative that the applicant seeks to care for.  A Form 40 Sponsorship for Migration to Australia was signed by Mr Wong on 15.12.2016 and submitted with the application. The Tribunal is satisfied that Mr Wong has turned 18, having been born in 1934, and that he is a settled Australian citizen and is usually resident in Australia.

16. 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).

17. 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. 

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

18. 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

19. 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.

20. 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.

21. Therefore, on the authority of the Full Federal Court in Babar, the Tribunal finds, on the evidence of the signed Form 40 Sponsorship dated 15.12.2016, the applicant was sponsored at time of application and meets cl.836.213. 

22. 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 2016 on the available evidence. 

23. The Tribunal starts from the established common law position of a presumption of capacity. [4] Unless there is a reason to question that the sponsor had capacity when he completed the sponsorship form, it must be presumed that he did.  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

24. 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.

25. The delegate appears to have relied on information contained in the Medibank Carer Visa Assessment Certificate (CVAC) dated 31 January 2014 and later BUPA CVAC dated 7 February 2017 and  Dr Tam’s report of 30 November 2013 to question the sponsor’s capacity to understand the sponsorship obligations and undertakings given in the Sponsorship form signed on 15 December 2016.  These Certificates and medical report were provided to assess his need for care assistance in attending to activities of daily life and make no reference to an assessment of his mental capacity to make decisions or give undertakings.  The Tribunal also notes a report from Mr Wilson Wong, Clinical Psychologist, dated 19.9.2016, lodged with the application indicated that the sponsor wanted his son to look after him, supporting that he was aware of, and consented to, the application. 

26. Following an invitation to comment on this information by the Department, the applicant provided evidence specifically addressing the issue of the sponsor’s mental capacity to give the undertaking.  This included a letter from Dr Tam, the sponsor’s treating geriatrician, dated 23 September 2017 which refers to reviewing the sponsorship obligation with him (on that day) and provides his professional opinion that the sponsor had since 2013, and has now, mental capacity to understand the obligations for which he was providing the undertaking to sponsor the applicant.  More recently, before the Tribunal a further medical opinion from Dr Charles Chan, Consultant Psychiatrist dated 19 February 2020 has been provided.  Dr Chan also assessed the sponsor for this purpose and confirmed that the sponsor understands the obligations and undertaking (as at the time of his letter).  Dr Chan’s letter provides details of the assessment he conducted with the sponsor and the basis for the opinion provided.  Additionally, the applicant provided a letter from a solicitor Jeffrey Wong giving a professional (though non medical) opinion, that the sponsor retains sufficient cognitive capacity to have provided the sponsorship undertaking in 2016, on the basis of an interview and questioning of him as to these matters, and a Statutory Declaration purportedly made by the sponsor on 4 November 2019, in the presence of a GP, Dr. Adrian Tai.    

27. The question of capacity is decision and situation specific and depends on the particular decision or situation under consideration. A person with a disability or medical impairment can still have decision-making capacity. For example, a diagnosis of Alzheimer’s disease or dementia of itself does not mean a person lacks mental capacity for everything.[7]  In the present case, the Tribunal does not accept that the references in the 2014 CVAC to the sponsor’s dementia or information contained in Dr Tam’s letter of 30 November 2013 is evidence that can support a finding he did not have capacity to give the undertaking he gave in 2016.  On the other hand, the 2017 report of Dr Tam, made following an assessment conducted to specifically assess this question (as at the date of the report) gave a professional opinion that he had such capacity.  The report of Dr Chan in 2020, who also specifically assessed the sponsor for this purpose, concurred with this opinion. The Tribunal observes that for both of these reports the sponsor was assessed substantially after the time the undertaking was given, in the context that he suffers degenerative conditions.  Nevertheless, both of these medical professionals saw fit to conclude that he had mental capacity at time of application. The evidence of the medical professionals was provided after they conducted relevant cognitive assessments.  Mindful of the complexity involved in assessing capacity in the context of degenerative conditions, where there is evidence of professional assessment having been carried out, and in the absence of any competing contradictory professional opinion equally based on such an assessment carried out for this purpose, the Tribunal considers it prudent to accept their professional judgements.  Therefore, on the evidence of Dr Tan and Dr Chan’s reports, the Tribunal is satisfied that the sponsor had mental capacity when signing the sponsorship form in 2016 and understood the undertaking he gave.   

    [7] About Decision Making Capacity, Capacity Australia, >

    The Tribunal considers the delegate’s conclusions that there were inconsistencies between Dr Tam’s 2013 and 2017 letters and its reliance on references to his functionality in the CVACs demonstrate a flawed approach to assessing capacity by failing to consider the specific context and the finding is not supported by the evidence.  The delegate’s view that r.1.15AA(3) required greater weight to be given to the CVAC over the opinion of Dr Tam, is also not legally correct as this subregulation only applies in the context of consideration of whether the visa applicant is a carer within the meaning of r.1.15 and is not required to be taken as correct for any other purpose. 

1. 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

2. There is no evidence before the Tribunal that the sponsorship given by the sponsor in 2016 has been withdrawn.  On that basis the Tribunal finds the sponsorship continues to be in force at time of decision.

3. 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. Sponsorship approval was described by the Full Federal Court in Babar as a discretion in respect of which there is no reference to content in the Regulations.[8]   The Full Court made clear 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]. 

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

4. 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.

5. 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 he has sponsored the visa applicant for the purposes of a carer visa. The evidence contained in the Department file supports that the visa applicant is and has been his main carer since the application was lodged, noting that the Tribunal has not, in this review, specifically assessed the visa applicant against this criteria. For example, the visa applicant was assessed as meeting the core r.1.15AA criteria in March 2017 in relation to the related offshore application. The evidence indicates the visa applicant lives close by to the sponsor with his family and that his wife, who is included in the application, has an income earning capacity.  There is no information before the Tribunal to indicate, or suggest, it will be necessary to provide financial or accommodation assistance for the visa applicants or any other basis for why the sponsorship should not be approved.  The Tribunal notes that the delegate in the related offshore application found on 7.4.2020 that cl.116.222 is met.   

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

7. The Tribunal notes that Departmental file notes indicate the visa applicant was found to meet the substantive criteria as a carer in r.1.15AA following assessment on 1.3.2017.[9]   He was also notified that he was assessed as meeting the core criteria in relation to his offshore SC116 application on 6 March 2017 when that application was placed in a queue. 

   [9] CLF2016/98065, folio 155.

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 applications for Other Family (Residence) (Class BU) visas 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.

   Meena Sripathy
   Member