TAMAPUA (Migration) - [2021] AATA 1090

TAMAPUA (Migration) [2021] AATA 1090 (19 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Ivona TAMAPUA
Mr Lomitusi Tamapua
Mr Maluina Samuela Tamapua
Mr Travis Site Tamapua
CASE NUMBER:  1819035
HOME AFFAIRS REFERENCE(S):          CLF2014/75977 CLF2018/17147 CLF2018/51472
MEMBER:Meena Sripathy
DATE:19 February 2021
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; and
·cl.836.227 of Schedule 2 to the Regulations.

Statement made on 19 February 2021 at 2:05pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsorship obligations – sponsored by an Australian relative – giving the undertaking simpliciter – assessment of the sponsor’s capacity to fulfil the undertakings – presumption of capacity – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, rr 1.03, 1.15, 1.20; Schedule 2 cls 836.213, 836.227
CASES
Babar v MICMSMA [2020] FCAFC 38
Estate of Doull (1881) 7 VLR (IP & M) 70
Gibbons v Wright (1954) 91 CLR 423
Lo v MICMSMA [2020] FCA 895
Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511
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 11 June 2018 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visa on 22 May 2014. 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 first named applicant (the applicant) is seeking to satisfy the primary criteria for the grant of a Subclass 836 visa. The remaining applicants seek to satisfy secondary criteria as members of the applicant’s family unit. 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 visas on the basis that cl.836.227 was not met because, relying on the evidence relating to the sponsor’s medical conditions contained in the Carer Visa Assessment Certificate, the delegate was not satisfied that the sponsor had capacity to understand his (sic) sponsorship obligations at time of application and consequently the delegate was not satisfied the sponsorship is in effect at time of decision and the applicant does not meet cl.837.227.
On 18 August 2020, on constitution of the matter to the present Tribunal, the applicant was invited to provide submissions and supporting evidence addressing cl.837.227 and specifically invited to address the judgement in Babar v MICMSMA [2020] FCAFC 38 which may be relevant to this…

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.

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Details

AGLC: TAMAPUA (Migration) [2021] AATA 1090
Case: [2021] AATA 1090
Decision Date: 19 February 2021

CaseChat Overview and Summary

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Subclass 836 (Carer) visa application. The applicant sought review of a delegate's decision that found the sponsorship requirements for the visa were not met. The core of the dispute revolved around the assessment of the sponsor's capacity to fulfil their sponsorship obligations.

The Tribunal was required to determine whether the sponsorship requirements under clause 836.213 and clause 837.227 of the Migration Regulations 1994 were satisfied. Specifically, the Tribunal had to consider whether the sponsor, an Australian relative, had met the criteria for sponsorship at the time of the application and whether that sponsorship remained in force and approved at the time of the decision.

The Tribunal found that the delegate's approach to assessing the sponsor's capacity was incorrect. Applying the Full Federal Court's decision in *Babar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs*, the Tribunal held that for the purposes of sponsorship, the giving of the undertaking simpliciter is sufficient, and there is no requirement to assess the sponsor's capacity to fulfil that undertaking at the time of application. The Tribunal was satisfied that the sponsor, Ms Linda Mataale Ahmad, had provided the necessary undertaking and met the definition of a sponsor.

Consequently, the Tribunal remitted the applications for the Other Family (Residence) (Class BU) visas 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. The Minister was 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 EVIDENCEAre 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 837.227 requires that the sponsorship mentioned in clause 836.213 has been approved by the Minister and is still in force. The delegate found, on the evidence provided in support of the carer visa application, that the sponsor did not have capacity to understand her sponsorship obligations at time of application and on that basis the delegate was not satisfied the sponsorship was in effect at time of decision. With respect, the Tribunal considers the delegate’s approach to the sponsorship issue to be incorrect in law and fact. For the following reasons it has reached a different conclusion and determines that the applicant is sponsored as required by cl.836.213 and, finds at time of decision, the sponsorship is still in force and is approved and the applicant meets cl.836.227. In the present case the evidence is that the applicant was sponsored by Ms Linda Mataale Ahmad, who is the Australian relative that the applicant seeks to care for. A Form 40 Sponsorship for Migration to Australia was signed by Ms Ahmad on 19.05.2014 and submitted with the application. The Tribunal is satisfied, on the evidence provided to the Department, that Ms Ahmad has turned 18, having been born in 1986, and that she is a settled Australian citizen and is usually resident in Australia. 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.[1] [1] Reg 1.20(1),(2). Since the delegate’s decision, there has been relevant judicial consideration of these issues. Specifically, there is full Federal Court authority for the proposition that at time of application the giving of the undertaking is all that is required for a person to be a sponsor for the purposes of these criteria. In Babar v Minister v Immigration, Citizenship, Migrant Services and Multicultural Affairs the Court held ‘In applying that requirement, no issue arises which involves an assessment of the capacity of the person to fulfil the undertaking if required’… giving the undertaking simpliciter is sufficient.[2] Although this judgment concerned sponsorship for a partner visa, the Tribunal observes that carer visas feature the same sponsorship framework. [2] [2020] FCAFC 38 at [36].

Decision

Reasons for decision

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 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;·cl.836.227 of Schedule 2 to the Regulations.Meena SripathyMember

Ratio Decidendi

Legal Principle Established

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