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

1. 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).

2. 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.

3. 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.

4. 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. 

5. The applicant was represented in relation to the review by her solicitor.  The representative attended the Tribunal hearing. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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. 

8. The issue in the present case is whether the sponsorship obligations are met. 

   Are the sponsorship requirements met?

9. 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). 

10. 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

11. 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. 

12. 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. 

13. 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.

14. The delegate also gave weight to the fact the sponsor did not have in place either a Power of Attorney or Enduring Guardianship. 

15. 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. 

16. No assessment was made as to whether the applicant met the definition of carer in r.1.15AA of the sponsor, and in particular, if the assistance required by the sponsor cannot reasonably be provided by any other relative of the sponsor who is resident in Australia, to meet the criteria in cl.836.221. 

    Tribunal’s consideration 

17. The Tribunal notes the delegate in refusing the applicant’s visa on 25 June 2018 stated ‘Having considered all of the evidence provided in support of the carer visa application, I am not satisfied that the sponsor has the capacity to understand his sponsorship obligations at the time of application.  Subsequently, I am not satisfied that the sponsorship obligation is in effect at time of decision.  It therefore follows that the applicant is not sponsored as required by the legislation, and therefore does not satisfy clause 836.227 in Schedule 2 of the Regulations on the date I made my decision.

18. 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.’

19. The Tribunal notes that 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]. 

20. On the basis of Babar, the Tribunal accepts the proposition that the giving of an undertaking is sufficient for a person to be a sponsor.  No requirement for an assessment of that person’s capacity to fulfil the undertakings 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.

21. The Tribunal notes that whilst on the basis of Babar, it does not need to make an assessment of the sponsor’s ability to fulfil the sponsorship undertakings, it believes, whilst noting the unclear present state of judicial authority on the matter (see Rares J in Lo v MICMSM [2020] FCA 895), it is required in the present matter, as it is in all matters where sponsorship undertakings are given, to be satisfied that the sponsor had the capacity to understand the undertakings and to give the undertakings. The Tribunal submits that this involves a consideration of the sponsor’s mental capacity at the date of application.

22. The Tribunal, on the evidence before it, particularly the testimony of the sponsor at the Tribunal’s hearing, believes the sponsor had capacity to understand and give the undertakings as sponsor at the time of application. 

23. The Tribunal notes the delegate made his decision to refuse the applicant’s visa based upon the report from geriatrician Dr Phoon on 27 June 2017 and his declaration that the sponsor had a mini mental score of 14/30 and had ‘substantial deficits’ in a range of areas.  The failure of the sponsor to have a Power of Attorney or Enduring Guardianship was also referred to.  The CVAC report is based upon Dr Phoon’s report along with a report from the sponsor’s GP Dr Dulic and his ENT surgeon Dr Howison.

24. The Tribunal notes the CVAC found the sponsor was independent in relation to his mobility and toileting.  He needed reminding when supervising medication; assistance in food preparation; prompting in matters such as bathing and grooming.  He was considered to be partially dependent. 

25. The CVAC goes on to find the sponsor had a ‘slowly progressive decline in his short-term memory’.  The CVAC reports he has ‘difficulty concentrating in any task and gets easily distracted’.  No functional impairment was reported pertaining to his intelligence, communication, mental health or consciousness.

26. The applicant submitted to the Tribunal prior to the hearing a Mini Mental State Examination undertaken by the sponsor on 5 May 2021 by Dr Peng Chan.  The sponsor received a score of 28/30.  The sponsor scored full marks for orientation; registration; received 4/5 for attention and calculation; and 11/12 for recall. 

27. The sponsor attended the Tribunal hearing of 1 June 2021 and provided oral testimony.  The Tribunal had the opportunity to question the sponsor and ask questions about his condition, who he had been seeing, the role the applicant had played in assisting him, the tasks the applicant undertook in providing assistance to him, and the applicant’s ability to be supported financially and in terms of accommodation among other things.  Some of the Tribunal’s questions were very specific in nature and required the sponsor to recall certain people and situations.  His responses to the questions were relatively clear and, whilst the sponsor very occasionally required some clarification of questions, the Tribunal does not consider such responses unusual.  The Tribunal found the sponsor to be an elderly man in need of assistance but nevertheless with a strong and genuine awareness of his needs, surroundings and, importantly for the Tribunal’s review, his understanding that he was the sponsor of the applicant, and his strong awareness that he had given an undertaking at the time of application.  The sponsor’s exhibited a good understanding of his various health challenges.  In relation to accommodation and finances, the sponsor stated he lives with the applicant and the applicant’s eldest son (Mr Al Musani who provided testimony at the hearing) who owns the property and looks after both parties financially. 

28. The Tribunal found the sponsor to be quite communicative and reasonably articulate.  He stated he had given the undertaking to be sponsor in 2017 and was aware of what he was doing when he signed the relevant Carer visa application forms.  He spoke of the care and support his sister provided him in some detail.  He stated that he still attended the bank and Centrelink and communicated with them directly.  The Tribunal notes Centrelink has not demanded a Power of Attorney or Enduring Guardianship be established for the sponsor and, on the evidence before it, accepts the applicant’s submissions that such an appointment has not, to date, been necessary.  

29. The Tribunal accepts that the sponsor was diagnosed with Alzheimer’s Disease at the time of application.  That finding is not disputed by the applicant.  The Tribunal notes nevertheless Dr Phoon’s finding that the sponsor has a slowly progressive decline in his short-term memory.  The finding that he had deficits in issues such as recall and construction, and his attention span, does not in the Tribunal’s opinion mean that he did not have the capacity and was unable to understand his undertakings and to give such an undertaking as sponsor at the time of application. 

30. There is a common law presumption of capacity.  The Tribunal notes in NSW there is no single definition of mental capacity, rather the legal definition of capacity depends in each case on the type of decision being made or the type of transaction involved: Gibbons v Wright [1954] HCA 17 The assessment of whether an individual has the mental capacity to give an undertaking or make other decisions in their life is subjective. There is a presumption of mental capacity, however, if an individual’s mental capacity is in doubt, the assessment of whether a person has the mental capacity to make particular decisions depends on the issues put before them. Simply because a person may be suffering Alzheimer’s Dementia or some other intellectual disability does not mean that they do not have the mental capacity to make certain decision in their lives.

31. In the current matter, the Tribunal notes that the CVAC referred to other medical reports beyond that of Dr Phoon that do not appear to have been looked at by the delegate, and do not appear in the Department file.  The Tribunal notes the CVAC furthermore provided no opinion as to the sponsor’s mental capacity to give the sponsorship undertakings. 

32. Based on the report/assessment provided by Dr Chan, and on the clear and articulate testimony and responses to questions provided by the sponsor at the hearing, the Tribunal finds that the sponsor had capacity at the time of application to both understand and give the undertakings as sponsor of the applicant.

33. On the evidence before the Tribunal, the Tribunal is satisfied that the sponsor had mental capacity when signing the Form 40 (D1, Folio. 23) on 13 July 2017 and he understood the undertaking which he gave. 

34. Therefore, at the time of application, the applicant was sponsored as required by the legislation and satisfies cl.836.213.

35. Clause 836.227 requires that at the time of decision, the sponsorship mentioned in cl.836.213 is still in force.

36. At the hearing the sponsor confirmed in oral testimony that he continued to wish to sponsor the applicant.  As the Tribunal has previously stated, it found the sponsor a reasonably lucid and articulate witness with a genuine understanding of his undertaking.  The Tribunal accepts he has the capacity to continue to provide the undertaking at the time of decision. 

37. There is furthermore no evidence before the Tribunal that the sponsorship has been withdrawn.  The Tribunal finds the sponsorship continues to be in force at the time of decision.

38. The Tribunal has considered whether the sponsorship should be approved by the Minister. The Tribunal notes that sponsorship approval was described by the Full Federal Court in Babar at [at 39] as a discretion in respect of which there is no reference to content in the Regulations. The Babar decision makes it clear that the Tribunal would be in error to apply the Department’s policy set out in PAM3.  With no prescribed matters or lawful policy guidance to consider, the Tribunal has considered the evidence before it of the ability of the sponsor to provide adequate accommodation and financial assistance to the applicant for the period of at least two years after the grant of the visa.  This will be done via the support of the applicant’s family unit, namely her eldest son (who is the sponsor’s nephew) who provided oral testimony at the hearing which the Tribunal accepts.  The Tribunal accepts the applicant’s eldest sons have income-earning capacity and her accommodation and financial needs will be met by her eldest son Mr Al Musani.  The Tribunal notes the sponsor, the applicant and the applicant’s son Mr Al Musani (with his own family) reside together in a six-bedroom home on a 1,000 square metre property. The applicant has resided with the sponsor and her son Mr Al Musani since 2017. The applicant’s son spoke in some detail about how he is responsible for his mother’s accommodation and finances on behalf of the sponsor. The Tribunal accepts that the applicant, sponsor and Mr Al Musani are part of a close family that cares for and supports each other.  The Tribunal accepts Mr Al Musani’s evidence, and is satisfied that the sponsor is able to meet his obligations through the genuine support being provided to the applicant in the form of accommodation and financial support being provided by Mr Al Musani.

39. In coming to a finding that the sponsorship should be approved, the Tribunal has also considered that on the evidence, the sponsor appears to have been cared for by his sister, the applicant since she arrived in Australia in 2017, although the Tribunal notes it has not made any assessment of the specific carer criteria under r.1.15AA of the Regulations. 

40. The Tribunal therefore finds for these reasons, the applicant satisfies cl.836.227 at the time of decision. 

41. 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

42. 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 Owen
    Senior Member