MAI (Migration) - [2022] AATA 1592

MAI (Migration) [2022] AATA 1592 (2 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss TRIEU MY LINH MAI
CASE NUMBER:  1823250
HOME AFFAIRS REFERENCE(S):          CLF2017/12092
MEMBER:Helena Claringbold
DATE:2 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) Carer (Subclass 836) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 116 (Carer) visa:
· cl.836.213 of Schedule 2 to the Regulations; and
· cl.836.227 of Schedule 2 to the Regulations.

Statement made on 02 March 2022 at 11:27am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – sponsor had the capacity to understand the sponsorship obligations at the time of application – the sponsorship is in force at the time of decision – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, rr 1.03, 1.05A, 1.15, 1.20, Schedule 2, cls 836.213, 836.227

CASES
Babar v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38
Lo v MICMSM [2020] FCA 895

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 24 January 2017, Miss Trieu My Linh Mai, the applicant, applied for an Other Family (Residence) (Class BU) Carer visa. The application was made on the basis of providing assistance to her grandmother, Ms Thi Lan Mai, the sponsor.
On 1 August 2018, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that the sponsorship requirements had been met. Therefore, the applicant did not meet cl. 836.227 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 12 August 2018, the applicant provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision. The applicant was represented in relation to the review.
At the time of visa application, 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 Regulations. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa.
On 30 March 2021, the Tribunal wrote to the applicant and invited her to a Tribunal hearing on 25 May 2021. In a separate letter the Tribunal invited the applicant to provide up to date information relating to the requirements for a Carer visa. She was advised that an example of how this information could be given would be in a current Carer Visa Assessment Certificate (CVAC). She was told that the information should be received by 13 April 2021. She was advised that if she could not provide the information by 13 April 2021, she could ask for an extension of time in which to provide the information. However, if she made such a request, it must be received by the Tribunal by 13 April 2021 and she must state the reason why the extension of time is required.
On 12 April 2021, the representative wrote to the Tribunal and stated the following. The applicant has arranged for a CVAC assessment through Bupa health Services (Bupa). However, due to significant delay, the CVAC and any resulting information would not be available by 13 April 2021. He would advise when the assessment was completed. He requested an extension of time to provide the information. He noted that all other relevant materials, including submissions and evidence in support of the sponsor’s capacity to undertake the sponsorship, would be provided to the Tribunal in due course.
On 14 April 2021, the representative wrote to the Tribunal and stated the following. The applicant has been advised by Bupa that they are not able to arrange for the CVAC directly with the applicant or the sponsor. She was told that the process is initiated by a formal request or referral made by either the Department or the Tribunal. In this case, Bupa require a written request from the Tribunal for the relevant assessment.
On 14 April 2021, the Tribunal wrote to the applicant and advised that an extension of time to provide the relevant information was granted with the relevant information to be with the Tribunal before 18 May 2021.
On 16 April 2021, the representative wrote to the Tribunal. He stated that the applicant will contact BUPA to arrange for the CVAC.
On 13 May 2021, the representative wrote to the Tribunal about the hearing set down for 25 May 2021. He stated the following. The applicant arranged for a CVAC assessment. However, an appointment for the sponsor with the Department of Neurology at the Royal Prince Alfred Hospital was originally scheduled for 30 April 2021 but has been rescheduled for 21 May 2021. The information will not be available by the seven-day period prior to the hearing on 17 May 2021 and may not be ready or available by the date of the hearing. In addition, the CVAC assessment is scheduled for 17 May 2021. He sought additional time to provide the information either by way of postponement of hearing or extension of time to provide the relevant information.
On 17 May 2021, the Tribunal wrote to the applicant and advised that the Tribunal hearing set down for 17 May 2021 had been rescheduled for 21 July 2021.
On 9 June 2021, the representative wrote to the Tribunal and provided a report from Dr Gary Banks, the CVAC and medical documents relating to the sponsor.
On 12 July 2021, the representative provided the Tribunal with an acceptance response for the Tribunal hearing set down for 21 July 2021.
On 19 July 2021, the representative wrote to the Tribunal and stated the following. The arrangements for hearing set down for 21 July 2021 via Microsoft Teams were that the applicant and the sponsor would attend their office in New South Wales and the representatives would attend from the office in Melbourne. COVID-19 pandemic restrictions affecting areas of New South Wales, as well as the snap lockdown in Victoria, led to the temporary closure of their offices. As a result, neither the applicant, sponsor nor representative will be able to attend the hearing as scheduled. The representative requested a postponement of the hearing set down for 21 July 2021 until such a time that the applicant, the sponsor, and their representative can properly attend the hearing.
On 20 July 2021, the Tribunal wrote to the applicant and advised that the Tribunal hearing set down for 21 July 2021 would be rescheduled and as soon as a new hearing date was available the Tribunal would write advise of the rescheduled date for the Tribunal hearing.
On 19 October 2021, the applicant appeared before the Tribunal to give evidence and provide argument from the representative’s office in New South Wales. The Tribunal also took evidence from the sponsor. The Tribunal hearing was assisted by the services of an interpreter in the English and Vietnamese languages. The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Home Affairs’ (the Department’s) case file and the Tribunal’s case file.
ISSUE
The issue in the present case is whether the sponsorship requirements are met.
BACKGROUND ON THE EVIDENCE
The applicant was born in 1995 in Ho Chi Minh City, Vietnam. Her parents and siblings live in Vietnam. On 1 August 2018, the applicant was refused an Other Family (Residence) (Class BU) Carer (Subclass 836) visa. She provided an address of Colin Street, Lakemba.
The sponsor was born in 1951 in Vietnam. The sponsor separated from her de facto partner in 1992, who later became deceased. Her estranged daughter lives in Australia and her son lives in Vietnam. Her siblings live in Vietnam, Australia and the USA. The sponsor first entered Australia on 26 June 1992 and on 1 December 1995, was granted Australian Citizenship. She provided an address of Colin Street, Lakemba. The sponsor is the paternal grandmother of the applicant.
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 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 cl. 836.213 has been approved by the Minister and is still in force.
Regulation 1.20 defines a sponsor as ‘a person who undertakes the obligations stated in sub regulation (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.’
At the time of visa application, the sponsor provided a Form 40 ‘Sponsorship for migration to Australia’, signed by her on 28 December 2016. The delegate was not satisfied that the sponsor had the capacity to understand her sponsorship obligations at the time of visa application or that the sponsorship has been approved and is still in force.
Since the delegate’s decision, there has been relevant judicial consideration of the matter of sponsorship undertakings in a Carer visa application. In Babar v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38 (“Babar”), the Full Court of the Federal Court held at [36] that:
‘In applying that requirement [to give undertakings], no issue arises which involves an assessment of the capacity of the person to fulfil the undertaking if required. As already mentioned, giving the undertaking simpliciter is sufficient. [bracketed words added].
On that basis, the Tribunal accepts the proposal that the giving of an undertaking is sufficient for a person to be a sponsor. There is no requirement for an assessment of that person’s capacity to fulfil the undertaking exists. All that is required is that the visa applicant is sponsored by the Australian relative who has turned 18 years of age and that the sponsor gives the undertaking. The ability of the sponsor to fulfil the undertaking is not an issue for the Tribunal’s consideration.
The Tribunal understands on the basis of Babar, it does not need to make an assessment of the sponsor’s ability to fulfil the sponsorship undertakings. However, judicial authority is unclear on the matter. In the reasoning of Rares J in Lo v MICMSM [2020] FCA 895), it is implied that it is open to consider mental capacity of a person to give the undertaking in r.1.20 in determining whether the applicant is sponsored. The Tribunal is of the view that in sponsorship undertakings, including in the present matter, it needs to be satisfied that the sponsor had the capacity to understand the undertakings and to give the undertakings. Therefore, this requires consideration of the sponsor’s mental capacity at the time of application.
The CVAC dated 7 November 2016 provided information about the sponsor’s medical condition. Based on the Social Security Tables she was rated 60 points which included 20 points for dementia. She was recorded as having a medical condition causing physical, intellectual or sensory impairment of the ability to attend to the practical aspects of life. It stated that her brain function was impaired through her having moderate dementia, affecting her concentration, her memory and her selfcare. She was noted as having a Mini Mental State Examination (MMSE) of 7/30. She was disoriented to time and place. She could not remember her address and often forgot to eat or bathe and toilet.
On 29 September 2016, Dr Ernest Tam, in a geriatrician report provided the following information. The sponsor was initially assessed by him on 11 August 2016 and reviewed on 1 September 2016 and on 29 September 2016 for a geriatrician report. The sponsor is suffering from multiple and complex permanent and disabling cognitive and medical conditions including dementia, mixed type. She presented with increasing short-term memory impairment and confusion, more noticeably in the past year. She is mentally slow and her coping ability is a concern. Her MMSE today was 7/30 (orientation 1/10, attention 5/10, recall 1/3). The sponsor is suffering from multiple and complex and physical conditions that are causing an impairment in her ability to attend to the practical aspects of her daily life. She is dependent in activities of daily living, because of her progressive cognitive impairment and permanent medical and physical conditions.
Information before the Tribunal is that an MMSE is a set of 30 questions that doctors and other healthcare professionals commonly use to check for cognitive impairment (problems with thinking, communication, understanding and memory).
A doctor might perform the MMSE if there is a reason to suspect that a person may be confused, such as after a head injury or during a sudden episode of illness such as an infection. It is also sometimes used as part of the process for determining if someone has dementia.
The MMSE can be used to assess several mental abilities, including:
- short and long-term memory
- attention span
- concentration
- language and communication skills
- ability to plan
- ability to understand instructions[1]
On 10 January 2018, the delegate wrote to the applicant and requested evidence to show whether any person had legal authority in place, at the time of visa application, relating to the sponsor.
In response the applicant provided a geriatrician report dated 25 January 2018, from Dr Ernest Tam who stated the following. The sponsor had an updated assessment on 25 January 2018. The sponsor is suffering from multiple and complex permanent and disabling cognitive and medical conditions including dementia, mixed type. She is cognitively better but still mentally slow. Her MMSE was ‘15/30 (orientation 6/10, attention 0/10, recall 1/3).’ He understands that as part of the sponsorship requirements, the sponsor needs to understand the obligations and undertakings of sponsorship. He reviewed the sponsorship obligations with the sponsor on 25 January 2018. Based on his assessment he considered that the sponsor demonstrated that she has the mental capacity and understood the obligations of sponsorship. He is satisfied that she understood her obligations and undertakings at the time of the visa application.
The applicant provided the Department a letter dated 1 February 2018, written in English translated from a foreign language letter. The sponsor stated the following. She was advised by the representative of her responsibilities as a sponsor before signing the sponsorship Form 40 (dated 28 December 2016). She was healthy and aware and understood her responsibilities and commitment as a sponsor.
In a letter dated 6 September 2018, Dr Law stated that the sponsor presented as being sad and slow. She suffered from headaches and knew she had multiple health problems and could not provide details, but indicated she had multiple aches and pains and she walked slowly and in small steps. Mental examination revealed she was visibly dull and dejected, but not suicidal or psychotic. She suffers from dementia and she should continue to be managed by various doctors (family doctor and medical specialists). She was keen to be cared for by the applicant who is already caring for her. He would be obliged if the visa could be granted.
In a letter dated 17 January 2019, Dr Duong provided information about the sponsor’s medical conditions. On 9 April 2021, Dr Duong stated that the sponsor is suffering from chronic medical illness and dementia, poor memory confirmed by Dr Tam in August-September 2016 and in January 2018 and 2019 that she suffers chronic insomnia, depression, headache, stress and dementia. He goes on to provide additional information about her medical conditions. Various documents addressed to Dr Duong relate to pathology and radiology reports for the sponsor. They do not address the sponsor’s mental capacity.
In a geriatrician’s report dated 21 February 2019, Dr Tam provided the following information. The sponsor continues to suffer from multiple and complex permanent and disabling cognitive and medical conditions including dementia, mixed type. She is cognitively steady and still needs 24-hour care at home. Her MMSE today was 12/30 (orientation 3/10, attention 0/5, recall 1/3. This result is partly affected by the language barrier although with the assistance of a Vietnamese interpreter. He understands that, as part of the sponsorship requirement, the sponsor needs to understand the obligations and undertakings of being a sponsor for the visa. Although the sponsor has dementia and needs a carer to manage her activities of daily living, she does demonstrate understanding of the responsibilities that she is undertaking as a sponsor for the visa. He has reviewed the sponsorship obligations again with the sponsor today. Based on his assessment of the sponsor he considers that she demonstrated that she has the mental capacity and could specifically understand the obligations of sponsoring. He is satisfied that the sponsor understands the obligations and undertaking at the time the carer visa application was lodged.
On 8 May 2021, Dr Tam provided the following information. The sponsor attended for an updated assessment on 1 May 2021, he has read the delegate’s decision record and advises that his cognitive assessment of the sponsor has been misinterpreted. The sponsor’s score in MMSE can fluctuate due to her lack of participation from depression and her clinical state. MMSE cannot be used as a valid judgement of her severity of dementia. Many people with mental capacity may not be able to answer orientation questions correctly. The sponsor could identify all the persons in the consulting room. When asked whom she was sponsoring she pointed to the visa applicant. She obeyed all instructions during the course of the consultation, including she has intact receptive thinking and executive abilities. The sponsor initially scored 0/3 on recall, probably due to lack of attention. On second attempt she scored 3/3 on recall indicating she has adequate short-term memory. She has demonstrated that she understands for a consultation today and for the updated report. She has demonstrated the capacity to understand the sponsorship undertakings. They have reviewed the definition of sponsorship obligations with the sponsor, which is the obligations and undertaking of the sponsorship, including giving the applicant support, accommodation and financial assistance as required. The sponsor continues to suffer from multiple and complex permanent and disabling cognitive and medical conditions including dementia, mixed type. She is cognitively steady and still needs 24-hour care at home. Her MMSE examination today was 14/30 (second attempt). Her first attempt was 11/30: on second attempt, her recall was improved from 0/3 to 3/3. Her MMSE score could have been affected by her depressive and low mood and concern about the carer visa application and approval of sponsorship. The sponsor despite her dementia, is fully aware that the applicant is in the process of applying for a carer visa to allow her to remain in Sydney to continue to care for the sponsor. The sponsor still has the mental capacity to comprehend the understanding of these obligations. He has reviewed the sponsorship obligations again with the sponsor today. Based on all his assessments of the sponsor he considers that she has demonstrated the mental capacity of specifically understanding the obligations of sponsoring the visa applicant he is satisfied that the sponsor understands her obligations and undertaking at the time of the carer visa application. Various documents addressed to Dr Tam relate to the sponsor’s pathology results.

In a letter dated 14 May 2021, Dr Banks provides a clinical psychological evaluation in relation to the sponsor and stated that the sponsor was referred by her representative for a cognitive assessment regarding her cognitive functioning, memory and decision-making ability. He provides detailed information of the process of assessment. An MMSE was administered. This is made up of six components, assessing domains such as memory, visuospatial orientation, praxis (movement replication), visuo-constructional drawing, judgement and language. The sponsor scored 21/30. A score of 22 or less is indicative of possible cognitive impairment and further assessment is recommended. The sponsor recalled the responsibilities of a sponsor including providing a place to live, giving money to the applicant if needed and making sure that she is safe, as well as ensuring that she does not do anything illegal. The sponsor reported quite confidently that she would be able to meet the financial obligations of a bond.
Dr Banks continues and stated the following, Dr Tam on 21 February 2019 scored the sponsor 12/30 on her MMSE, a similar measure to the one administered above. In previous administrations of the MMSE in January 2018 the sponsor scored 15/30, on 29 September 2016, she scored 7/30. On 7 November 2016, Dr Lim reported in the carer visa assessment certificate the same MMSE score of 7/30. A question as to whether the multicultural version of the MMSE was administered should be determined, as using the English version of the MMSE on the non-English-speaking population has been shown to underestimate the cognitive performance of individuals. It is noted in the delegate’s decision on page 3 that the findings of Dr Tam were interpreted to be inconsistent and therefore greater weight was given to the findings of Dr Lim. However, the improvement in scores over time is particularly relevant given the greater context of the sponsor’s life at the time. It is noted that the applicant arrived in Australia to assist the sponsor in 2016. Prior to her arrival, the sponsor lived relatively isolated with no family support and limited social supports, and with questionable compliance with her medication which with insulin dependent diabetes mellitus (IDDM), non-compliance can have profound adverse cognitive effects. Additionally, for older adults who experience loneliness, there has been evidence to suggest that loneliness significantly predicted worsening cognitive functioning. Therefore, a possible explanation for the incremental improvement in results (which despite the positive change, would still suggest a degree of cognitive impairment) may be attributed to the combined effect of increased medication compliance and increased social interaction that the sponsor has experienced since having the physical and social support of the applicant. Hence it would be reasonable to conclude there are significant positive outcomes across physical, social and emotional functioning domains for the sponsor in having the applicant as her carer.
To summarise, Dr Banks stated the sponsor was referred seeking an opinion on her cognitive functioning, memory and decision-making ability, while acknowledging the limits associated with the conduct of cross-cultural, non-English neuro psychological assessments on an individual with an impoverished education history, there was evidence suggestive of some possible cognitive impairment, but not to the extent that it renders the sponsor understanding of the nature of the responsibilities involved in Australian visa sponsorship. During interview, she was able to independently recall her efforts to understand the requirements of the visa application and responsibilities associated for her as the sponsor. The findings of this assessment appear to identify a pattern of improving cognitive function in the sponsor from 2016 to 2021. It is acknowledged that the delegate previously dismissed the findings of prior cognitive assessments as they reflected this improvement and appeared to be inconsistent. However, given the multiple factors identified at the time which adversely impacted her health, this may well have been a conservative estimate. The inconsistencies between assessments may be attributable to the increase in physical, social and emotional support provided by the applicant since her arrival 2016. In light of this, together with findings from the current assessment this highlights and strengthens the case that the sponsor greatly benefits from having a carer, particularly the applicant. Separate to that, but still related, is that the sponsor demonstrated a good awareness of and was able to independently articulate a sound understanding of what sponsorship is and what her responsibilities are in relation to this. There was no evidence arising from the assessment to suggest the sponsor was either unable to understand these responsibilities nor unwilling to consistently abide them over a prolonged period of time.
A CVAC dated 21 May 2021 provided information about the sponsor’s medical condition. Based on the Social Security Tables she was rated 65 points which included 20 points for dementia. She was recorded as having multiple comorbidities. She was well engaged with the assessment with the Vietnamese interpreter. She walked in with the forward WW Walker without any assistance. She mobilises slowly but independently. She was unable to recall her date of birth but managed to give some details of her medical conditions. She spoke of her concentration, planning and organisation which was mainly affected by her dementia and she was frustrated with bladder and bowel incontinence. She is more concerned about her previous hypoglycaemic episode and worries about episodes of unconsciousness. She reported a visual impairment, currently waiting for surgery. She is recorded as having various medical conditions including functional brain impairment present. The details of impairment are dementia mixed type. She was unable to remember routine regular tasks and instructions and unable to recall the events of the past few days. She never concentrates on any tasks. She is unable to plan and organise routine daily activities. Unable to prioritise and make complex decisions, requires regular prompting to understand basic instructions. Therefore, she has severe functional impact due to her cognitive impairment.
In a letter dated 15 July 2021, Dr Ng advised of the following. She is a geriatrician at Concord Hospital. The sponsor was on here at Concord Hospital from 9 June 2021 to 25 June 2021. Due to her medical conditions and impairments, she requires 24-hour supervision and monitoring. Currently she requires weekly general practitioner review and multiple specialist reviews from Dr Ng but also other disciplines.
The applicant told the Tribunal the following: she entered Australia at the end of November 2016 and began living with the sponsor and continues to live with her. Prior to her arrival the sponsor lived alone. The applicant does not have any income and has been supported by the sponsor financially and for accommodation. The sponsor’s income is derived from her pension. The rent is automatically deducted from the pension and the remainder is used for daily expenses. The sponsor and her daughter have been estranged for many years. And the sponsor does not have other relatives living in Australia. There is no legal authority in place relating to the sponsor. The sponsor understood her sponsorship obligations at the time of application. The sponsor understands slowly but may need to have information repeated to her.
The sponsor told the Tribunal the following: the reason she was appearing at the Tribunal is because of the issue of not understanding the responsibilities as a sponsor. Previously she didn’t understand the sponsorship obligations as she had no one to help her but now she understands the sponsorship obligations. She is responsible for taking care of the applicant financially and to ensure she remains lawful. In the past she had a friend who helped her but that has stopped and she had to look to family for assistance and she asked the applicant to help her. The sponsor has paid for the rent and food and living expenses since the applicant’s arrival. Should the visa be granted she will continue to support the applicant financially.
The Tribunal told the sponsor that the visa application was made in January 2017, it asked her whether at the time the visa application was made, whether she understands the obligations of sponsorship. The sponsor responded and stated, previously she didn’t understand, but now she does understand. She knows that she is required to support the applicant financially and provide accommodation. The Tribunal asked the sponsor whether she understood this at the time the visa application was made or, whether it was after the time of visa application, that she came to understand. The sponsor responded and stated that at the time of visa application she didn’t fully understand the responsibilities. The Tribunal asked the sponsor when she began to understand and she stated a few months later.
In a post hearing submission, the representative provided information including the following: the sponsor was asked whether she understood her sponsorship undertakings at the time the application was made (January 2017). She stated that she did not understood them until ‘a few months after’. The question was rephrased and put to the sponsor several times. The sponsor understood the question. However, didn’t understand the concept of ‘time of application’. The sponsor has limited understanding of migration law and an inability to understand the English language. The sponsor has issues with her memory, including memory of the specific time and date of the application. She understood the reference to time of application to mean when they began the process of collecting information and looking at their options for the applicant’s stay in Australia. She did not understand the reference to when she made the application was specific to the time the visa application was lodged. She answered truthfully and meant that when she initiated the process in 2016, she did not understand her sponsorship undertakings. However, several months later, when the application was prepared ready for lodgement, she understood her sponsorship undertakings, as by this point, they had been explained to her in detail.
In a translated statement dated 26 October 2021 the sponsor stated initially when preparing the visa application, she didn’t understand the undertaking of sponsorship. However, when she completed and signed the paperwork, she understood that she needed to be responsible for the applicant and provide a place to live and financially support her. She understood the question to refer to time when she prepared the application and stated honestly that she didn’t understand.
The Tribunal considered Dr Tam’s opinion that the sponsor was cognitively better but still mentally slow. He stated that in reviewing the sponsorship obligations with the sponsor in January 2018, he considered that she demonstrated the mental capacity and understood the obligations of sponsorship. He is satisfied that she understood her obligations and undertakings at the time of the visa application. It also considered Dr Tam’s opinion in February 2019 that the sponsor demonstrated understanding of the responsibilities that she is undertaking as a sponsor for the visa. Based on his assessment of the sponsor he considered that she demonstrated that she has the mental capacity and could specifically understand the obligations of sponsoring. He is satisfied that the sponsor understood the obligations and undertaking at the time the carer visa application was lodged. It considered Dr Tam’s opinion in May 2021 that the sponsor has the mental capacity to comprehend these obligations. He has reviewed the sponsorship obligations again with the sponsor today. Based on all his assessments he considered that the sponsor demonstrated the mental capacity of specifically understanding the obligations of sponsoring the visa applicant. He is satisfied that the sponsor understood her obligations and undertaking at the time of the visa application. It also considered the opinion of Dr Banks in 2019, in relation to the sponsor that there was evidence suggestive of some possible cognitive impairment, but not to the extent that it renders the sponsor understanding the nature of her responsibilities of Australian visa sponsorship. During interview, she was able to independently recall her efforts to understand the requirements of the visa application and responsibilities associated for her as the sponsor. He stated that the sponsor demonstrated a good awareness of and was able to independently articulate a sound understanding of what sponsorship is and what her responsibilities are in relation to this.
The medical opinion from 2018 onwards is of improvement in the sponsor’s cognitive ability and retrospective opinion that she understood the sponsorship obligations at the time of visa application, 24 January 2017. In the letter dated February 2018, the sponsor declared having been advised by the representative of her responsibilities as a sponsor before signing the sponsorship Form 40 and that she understood her responsibilities and commitment as a sponsor. There is no medical opinion at the time of visa application that the sponsor understood the undertaking of the obligations of sponsorship. Notwithstanding this dilemma, there is consistent medical evidence that she had the capacity to understand the sponsorship obligations at the time of application. The oral evidence to the Tribunal is that the applicant has cared for the sponsor since the end of November 2016, prior to the time of application. The evidence to the Tribunal is that since the end of November 2016, the sponsor has supported the applicant financially and provided her with accommodation. At the Tribunal hearing the sponsor gave clear evidence that she understands the sponsorship obligations.
This decision record is a synopsis of the evidence before the Tribunal. The Tribunal considered the evidence individually and completely. The Tribunal accepts that the sponsor understands the undertakings of the obligations of sponsorship currently. Overall, it accepts that at the time of visa application she understood the undertakings of the obligations of sponsorship.
Therefore, at the time of application, the applicant was sponsored as required by the legislation and meets cl.836.213 of Schedule 2 to the Regulations. At the time of decision, the sponsorship is in force and the applicant meets cl.836.227 of Schedule 2 to the Regulations.
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 Carer visa.
DECISION
The Tribunal remits the application for an Other Family (Residence) (Class BU) Carer (Subclass 836) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 116 (Carer) visa:
·cl.836.213 of Schedule 2 to the Regulations; and
·cl.836.227 of Schedule 2 to the Regulations.
Helena Claringbold
Member