Shin (Migration) - [2018] AATA 2343

Shin (Migration) [2018] AATA 2343 (29 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Kyung Sook Shin
CASE NUMBER:  1701526
DIBP REFERENCE(S):  CLF2016/25631
MEMBER:Moira Brophy
DATE:29 June 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 29 June 2018 at 10:50am

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Carer – Sponsor’s daughter – Power of attorney – Son provided assistance with the making of the application – Sponsor’s cognitive impairment – Reasonable care arrangements – Adult children in Australia – Combination of care provided by family and professional services – Sponsor recipient of Community services care – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5CB, 5F, 65
Migration Regulations 1994, rr 1.03, 1.15A, 1.15AA Schedule 1 Item 1123B Schedule 2 cls 836.111, 836.212, 836.213 , 836.221
CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Jajov MIBP [2013] FCCA 1554
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 Immigration on 16 January 2017 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 21 April 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 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.
The delegate refused to grant the visa on the basis that cl.836.213 was not met because the delegate was not satisfied the sponsor was able to comprehend the scope and extent of the sponsorship undertakings because of her medical condition. The sponsorship was therefore not accepted.
The applicant Ms Kyung Sook Shin appeared before the Tribunal on 5 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs An Soon Shin, who is the applicant's sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether at the time of application the sponsorship requirements are met and if so whether the applicant Ms Kyung Sook Shin is the carer of the sponsor Mrs An Soon Shin.
Are the sponsorship requirements met?
Clause 836.213 requires that at the time of application the applicant is sponsored by the Australian…

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 Shin (Migration)

Details

AGLC: Shin (Migration) [2018] AATA 2343
Case: [2018] AATA 2343
Decision Date: 29 June 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an appeal by Ms Kyung Sook Shin against a decision not to grant her an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant, Ms Shin, sought to be recognised as the carer for her mother, Mrs An Soon Shin, who was the sponsor. The central dispute revolved around whether the sponsorship requirements were met at the time of the visa application, given Mrs Shin's cognitive impairment.

The Tribunal was required to determine two primary issues: firstly, whether the sponsorship requirements were satisfied at the time of the application, and secondly, whether Ms Shin was indeed the carer of Mrs Shin. The assessment of the sponsorship requirements involved considering whether Mrs Shin, due to her diagnosed Alzheimer's disease and dementia, was capable of comprehending the scope and extent of the sponsorship undertakings she was making. This also necessitated an examination of an Enduring Power of Attorney granted by Mrs Shin to her son, Joongsuk Shin, to ascertain if it encompassed the authority to make such sponsorship decisions.

The Tribunal reasoned that while an enduring power of guardianship might typically be required for lifestyle or health decisions, an enduring power of attorney could extend to sponsorship undertakings as they were fundamentally a legal matter. The Tribunal was satisfied that the Enduring Power of Attorney granted to Joongsuk Shin was in effect at the time of the application and covered the sponsorship obligations. It was also satisfied that Joongsuk Shin had provided assistance with the application and was aware of its obligations. The Tribunal concluded that the sponsorship requirements were met.

Consequently, the Tribunal affirmed the decision under review, meaning the application for the Subclass 836 visa was not granted.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether at the time of application the sponsorship requirements are met and if so whether the applicant Ms Kyung Sook Shin is the carer of the sponsor Mrs An Soon Shin.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). The applicant in this case is sponsored by an Australian relative as defined (her mother) and the sponsor has turned 18 (DOB 3 January 1926). The issue is whether the sponsor was able at the time of application to comprehend the scope and extent of the sponsorship undertakings because of her medical condition. The sponsor was assessed by an ACAT assessor on 2 December 2015 as having Alzheimers Disease, mixed type with behavioural and psychological symptoms which impacted on her short term memory. A BUPA Carer Visa Assessment Certificate dated 8 April 2016 states the sponsor has dementia that has come progressively worse over the past few years. The application was lodged on 21 April 2016. The sponsor signed the application. The delegate has determined that the medical evidence does not support a finding that the sponsor was able to comprehend the scope and extent of the sponsorship undertakings because of her medical condition. The Tribunal considered this issue and whether the Enduring Power of Attorney dated 21 October 2014 and made by the sponsor An Soon Shin in favour of her son Joongsuk Shin covered the scope and extent of the sponsorship undertakings in the application. In making this assessment the Tribunal was mindful of the delegates finding that a decision to sponsor was essentially a decision about lifestyle or health. A general power of attorney gives the attorney the authority to manage a person’s legal and financial affairs while an enduring power of guardianship would be required to make a decision to sponsor as it was essentially a decision about lifestyle or health. The Tribunal is satisfied that an enduring power of attorney assigns the powers necessary to make decisions about sponsorship undertakings which are essentially a legal issue. The Tribunal was satisfied that Joongsuk Shin the son of the sponsor and the person who has been assigned the power of attorney provided assistance with the making of the application (see folio 24 department file CLF2016/25631) and was therefore aware of the sponsorship obligations and undertakings. The Tribunal is satisfied that the enduring power of attorney dated 24 October 2014 was in place at the time this application was lodged, and extended to cover the sponsorship obligations and undertakings as part of the application.

Decision

Reasons for decision

The Tribunal affirms the decision under review. DECISION The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.Moira BrophyMember

Ratio Decidendi

Legal Principle Established

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