Madeira (Migration)

[2019] AATA 1104

Madeira (Migration) [2019] AATA 1104 (7 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Stephen Madeira
Mrs Christina Bernadette Madeira

CASE NUMBER:  1700635

DIBP REFERENCE(S):  CLF2016/30440

MEMBER:Kira Raif

DATE:7 January 2019

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

Statement made on 07 January 2019 at 2:51pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – evidence from medical practitioner sponsor understood sponsorship obligations provided – Enduring Power of Attorney (Medical Treatment) – sponsor of sound mind – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.20, Schedule 2, cls 836.227, 836.213
Power of Attorney Act 2014, Part 3

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 Immigration on 23 December 2016 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 are nationals of India. They applied for the visa on 18 May 2016. The delegate refused to grant the visas on the basis that cl.836.227 was not met because the sponsorship was not approved. The applicants seek review of the delegate’s decision.  

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

   Relevant law

4. At the time the application was made, 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 applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa.

5. 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.

6. At the time of decision, the sponsorship must be approved by the Minister and be in force – cl. 836.227. Sponsorship undertakings are set out in Regulation 1.20.

   Are the sponsorship requirements met?

7. The applicants were sponsored in the application by the first named applicant’s (‘the applicant’s’) mother.

8. The primary decision record indicates that a Carer Visa Assessment Certificate dated 6 June 2016, which was provided with the application, and a medical report from the sponsor’s treating doctor dated 23 March 2016, indicate that the sponsor had been diagnosed with ‘mild dementia’ and has shown signs of memory loss. The delegate wrote to the applicant seeking information to indicate that despite her medical condition, the sponsor had the intellectual capacity to understand the sponsorship undertakings and obligations and agreed to the sponsorship undertaking and obligations. The delegate inquired whether a power of attorney or guardianship arrangements had been made. In response, the applicant stated that there was no third party power of attorney. The applicant provided a new Sponsorship Form 40 but the delegate found that the legislation did not allow for a change of sponsors. The delegate noted that there was no evidence from a medical practitioner to indicate that the sponsor understood her sponsorship obligations and undertakings. There was no evidence that at the time of the application, the power of attorney or state public guardianship were in place. Ultimately, the delegate was not satisfied that the sponsor had, and would continue to have, the ability to comprehend the scope and extent of the undertaking obligations based on her medical condition throughout the duration of such obligations.

9. The applicant provided to the Tribunal a copy of the Enduring Power of Attorney (Medical Treatment), signed by Ms Dulcie Madeira in September 2016 in favour of her two children. Two witnesses confirm their belief that Ms Madeira was of sound mind and understood the import of the document. Ms Barlow, to whom the Power of Attorney was given, provided a declaration supporting the sponsorship. The applicant provided to the Tribunal an Enduring Power of Attorney issued under Part 3 of the Power Attorney Act 2014. The applicant also presented to the Tribunal a statement from Dr Kamath, the sponsor’s treating doctor, who states that in his professional opinion, the sponsor was capable of understanding her sponsor obligations.

10. The Tribunal places weight on Dr Kamath’s report. Dr Kamath, who has been the sponsor’s treating doctor for a number of years and is familiar with her health, states that the sponsor was capable of understanding her sponsor obligations when the application was made in May 2016. The Tribunal also places weight on the fact that the power of attorney was issued in September 2016, only four months after the visa application was made, and it indicates that at the time the power of attorney was issued, the sponsor was assessed as having decision making capacity to make the power of attorney. The Power of Attorney Act 2014 requires an assessment of a person’s decision-making capacity. On the basis of these materials, the Tribunal is satisfied that when the application was made, the sponsor had the capacity to understand the sponsorship obligations for the purpose of cl. 836.213. The Tribunal finds that cl. 836.213 is met.

11. At the time of this decision, there are statements from the sponsor’s daughter – who has been given the power of attorney - and evidence from other family members providing an undertaking to meet sponsorship obligations. The Tribunal notes that primary decision was based on the fact that the applicant failed to present a power of attorney or a medical certificate concerning the sponsor’s capacity at the time of the application. These documents have now been provided to the Tribunal. The delegate was not satisfied that the sponsor would have the capacity ability to comprehend the scope and extent of the undertaking obligations at the time of the decision and discharge the sponsorship obligations. Having regard to the power of attorney, the capacity to understand, and comply with, the sponsorship obligations at the time of this decision must be assessed by reference to the person or persons appointed under the Powers of Attorney Act 2014 and that assessment was not completed by the delegate because the relevant information was not before the delegate. To enable that assessment to be completed, as well as any other assessment that may affect the sponsorship approval, including in relation to other sponsorship limitations that may apply under the Act or the Regulations, the Tribunal makes no findings in relation to cl. 836.227.

    Conclusion

12. 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

13. 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

    Kira Raif
    Senior Member