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

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).
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.
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.
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…

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 HUANG (Migration)

Details

AGLC: HUANG (Migration) [2021] AATA 354
Case: [2021] AATA 354
Decision Date: 11 February 2021

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The primary issue before the Tribunal was whether the sponsorship requirements for the visa had been met. The applicant was sponsored by Mr Pak Chung Wong, an Australian citizen whom the applicant intended to care for.

The legal issue the Tribunal was required to determine was whether the sponsor, Mr Wong, had the capacity to understand his sponsorship obligations and fulfil his undertaking at the time of the visa application. The delegate had found that Mr Wong lacked this capacity, and therefore the sponsorship was not in effect. The Tribunal considered whether an assessment of the sponsor's capacity to fulfil the undertaking was a prerequisite for meeting the sponsorship criteria.

The Tribunal reasoned that, based on relevant judicial consideration, the act of giving the undertaking itself is sufficient to satisfy the sponsorship requirement for a carer visa, and there is no requirement to assess the sponsor's capacity to fulfil that undertaking. The Tribunal noted that this principle, established in *Babar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs*, applied to carer visas despite the case concerning partner visas, as both visa types share the same sponsorship framework. Consequently, the Tribunal found that the applicant was sponsored as required by clause 836.213 and that the sponsorship was in force and approved at the time of the decision, satisfying clause 836.227.

The Tribunal remitted the application for reconsideration by the Minister, with the direction that the sponsorship criteria under clauses 836.213 and 836.227 of Schedule 2 to the Regulations were met.

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 EVIDENCEAre the sponsorship requirements met?Applicant is sponsored at time of application 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). Clause 836.227 requires that the sponsorship mentioned in clause 836.213 has been approved by the Minister and is still in force. 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. 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. 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. 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 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].

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 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 SripathyMember

Ratio Decidendi

Legal Principle Established

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