Maroun (Migration) - [2021] AATA 2077

Maroun (Migration) [2021] AATA 2077 (3 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Ivan Maroun
CASE NUMBER:  1820188
HOME AFFAIRS REFERENCE(S):          CLF2017/53397
MEMBER:Justin Owen
DATE:3 June 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa 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 03 June 2021 at 12:48pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsor’s capacity to understand sponsorship undertaking – slowly progressive dementia – no requirement for assessment of sponsor’s capacity to fulfil obligations – medical reports and presentation at hearing – common law presumption of capacity – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15A, 1.15AA, 1.20, Schedule 2, cls 836.213, 836.227
CASES
Babar v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38
Gibbons v Wright [1954] HCA 17
Lo v MICMSM [2020] FCA 895
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 25 June 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 19 July 2017. 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 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. 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 visa on the basis that cl 836.227 was not met because the delegate was not satisfied the sponsorship could be approved as the delegate was not satisfied the sponsor was able to understand the requirements of the undertaking that must be given by the sponsor.
The applicant appeared before the Tribunal on 1 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor Mr Elia K. Maroun and the sponsor’s son Mr Mourise Al Musani. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
The applicant was represented in relation to the review by her solicitor. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration, individually and as…

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 Maroun (Migration)

Details

AGLC: Maroun (Migration) [2021] AATA 2077
Case: [2021] AATA 2077
Decision Date: 3 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an appeal by an applicant for an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer), against a delegate's decision to refuse her application. The applicant sought to migrate to Australia to care for her brother, the sponsor, who had been diagnosed with Alzheimer's Dementia. The delegate had refused the application on the basis that the sponsor lacked the capacity to understand his sponsorship obligations at the time of application, and therefore the sponsorship was not in effect.

The primary legal issue before the Tribunal was whether the sponsor had the capacity to understand his sponsorship obligations at the time the visa application was lodged, given his diagnosis of Alzheimer's Dementia. This involved considering the medical evidence presented, including reports detailing the sponsor's cognitive deficits, and whether the absence of a Power of Attorney or Enduring Guardianship was relevant to this assessment. The Tribunal was required to determine if the delegate had erred in finding that the sponsorship requirements were not met.

The Tribunal reasoned that, in the absence of specific legislative provisions requiring an assessment of a sponsor's capacity to fulfil sponsorship obligations, the common law presumption of capacity should apply. This presumption is that an adult is capable of understanding their actions and obligations unless there is clear evidence to the contrary. While acknowledging the sponsor's medical condition and the reports detailing his cognitive impairments, the Tribunal found that the delegate had placed undue weight on the absence of formal legal arrangements like a Power of Attorney. The Tribunal concluded that the evidence, including the sponsor's presentation at the hearing, did not definitively establish a lack of capacity to understand the nature of the sponsorship undertaking at the time of application.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the criteria under cl 836.213 and cl 836.227 of Schedule 2 to the Regulations were met. This meant the Minister was to proceed to consider the remaining criteria for the Subclass 836 visa.

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 EVIDENCE The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department’s case file and the Tribunal’s case file as well as the oral testimony of the applicant, sponsor and witnesses at the hearing. The issue in the present case is whether the sponsorship obligations are met. 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 reg 1.03 of the Regulations. ‘Spouse’ is defined in reg 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. Delegate’s decision The applicant was born in Lebanon on 19 September 1962. She is the sister of the sponsor and Australian resident, Mr Elia Kaissar Maroun born 10 September 1944 who she seeks provide care to. The applicant has three sons who reside in Australia and are Australian citizens. She has three Australian citizen siblings including the sponsor. The applicant is widowed. In the decision record the applicant provided the Tribunal, the delegate noted on 19 July 2017 the applicant lodged a Carer visa application, including a Form 40 ‘Sponsorship for migration to Australia’, purportedly signed by the sponsor Mr Elia K. Maroun. Also submitted at this time was medical evidence which attested to the sponsor’s medical diagnosis of Alzheimer’s Dementia. The delegate noted the Carer Assessment Visa Certificate (CVAC) dated 9 August 2017 which rated the sponsor 20 points for Alzheimer’s Dementia and noted the sponsor was having difficulty in recalling events of the past two days. The delegate also noted the report by geriatrician Dr Stephen Phoon dated 27 June 2017 in which Dr Phoon noted the sponsor had a mini mental score of 14/30 and had exhibited “substantial deficits” in orientation in time and place, his attention span, language, multi-tasking, recall and construction. The delegate also gave weight to the fact the sponsor did not have in place either a Power of Attorney or Enduring Guardianship. The delegate, after inviting the applicant to address the adverse finding and considering the evidence provided, was not satisfied the sponsor had the capacity to understand his sponsorship obligations at the time of application. Subsequently, he was not satisfied the sponsorship was in effect at the time of decision and refused the application as not satisfying cl.836.227.

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 application for an Other Family (Residence) (Class BU) visa 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.Justin OwenSenior Member

Ratio Decidendi

Legal Principle Established

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