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

1. 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).

2. 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.

3. 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.

4. 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 issue.

5. The applicant’s representative provided a response on 1 September 2020, including Blacktown Hospital Discharge Reports relating to a hospital admission in June 2020; Medical Certificate dated 6.8.2020 from Dr David Loh, and legal submissions.

6. The issue in the present case is whether the visa applicant meets cl. 836.227 at time of decision.  As this clause refers specifically to the sponsorship mentioned in cl.836.213, the Tribunal has also considered this time of application criteria. 

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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 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).

10. Clause 837.227 requires that the sponsorship mentioned in clause 836.213 has been approved by the Minister and is still in force.

11. 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. 

12. 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.

13. 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.

14. 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).

15. 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].

16. The Tribunal has also considered the judgement in Lo v MICMSMA,[3] of a single judge, Rares J.  This case concerned a Subclass 836 carer visa application and the issue under consideration was whether the relevant sponsor could be identified at a time after the visa application was lodged. Rares J held that cl 836.213 requires that an applicant is sponsored at time of application and cl 836.227 requires that the sponsorship put forward at the time of application has been approved and is still in force at time of decision.  Specifically, the judgement establishes that cl. 836.213 does not allow the sponsor to be identified (or changed) after the time of visa application.  However, relevantly to the present matter, at [27] the Court observed that the Tribunal made ‘an unchallenged finding’ that it was not satisfied, when he signed the sponsorship form in 2012, the father understood the nature of the sponsorship obligations and found ‘no error’ in this aspect of the Tribunal’s decision. 

    [3] [2020] FCA 895

17. While on the one hand, this may suggest it is open to consider the issue of the sponsor’s mental capacity to give the undertaking in determining whether the visa applicant is sponsored, the Tribunal considers this does not sit well with the conclusion of  the Full Federal Court in Babar, referred to above, that giving the undertaking simpliciter is sufficient (at [36]) and that no issue arises involving an assessment of the capacity of the sponsor to fulfil the undertakings.  The Tribunal observes that Rares J in Lo noted that the Tribunal’s finding on the mental capacity of the sponsor was unchallenged, and the issue of the Tribunal’s assessment of mental capacity in the context of cl.836.213 appears to have not been specifically argued before the Court or Circuit Court before it.  Notably, there is no mention in Rares J’s decision of the judgement of the Full Court that was handed down only several months prior.  In these circumstances, the Tribunal is inclined to treat the Court’s observation on this point as just that, obiter; the ratio of the decision being that cl.836.213 does not allow the sponsor to be identified after the time of visa application.

18. In the Tribunal’s view, it is not clear on the present state of judicial authority that it is open to assess the mental capacity of the sponsor in giving the undertaking, once it is made, given  Babar makes clear no issue arises as to the sponsor’s capacity to fulfil the undertakings. 

19. Therefore, on the basis of the approach adopted by the Full Federal Court in Babar, the Tribunal considers it is open to conclude, on the evidence of the signed Form 40 Sponsorship dated 19.05.2014, that the applicant was sponsored at time of application and meets cl.836.213. 

20. However, if the Tribunal is wrong on the issue of whether it is open to assess the sponsor’s mental capacity to give the undertaking, the Tribunal has a different view from the delegate about the sponsor’s mental capacity in signing the Sponsorship Form 40 in 2014 on the available evidence. 

21. The Tribunal starts from the established common law position of a presumption of capacity.[4] Unless there is a reason to question that the sponsor had capacity when she completed the sponsorship form, it must be presumed that she did.  In the context of contract law generally where capacity arises as an issue, the extent of capacity which must be possessed has been found to be  not fixed but relative to the particular contract, instrument or transaction in question.[5]  Each party must have such soundness of mind as to be capable of understanding the general nature of what he or she is doing by the participation and the capacity to understand the transaction when it is explained.[6] 

    [4] When a Client’s Mental Capacity is in Doubt, A practical guide for Solicitors, The Law Society of NSW, 2016 ,  p6,

    [5] See In the Estate of Doull (1881) 7 VLR (IP & M) 70; Gibbons v Wright (1954) 91 CLR 423 Neutral treatment indicated at 437-9; [1954] ALR 383; (1954) 28 ALJ 111; BC5400600 per Dixon CJ, Kitto and Taylor JJ; Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511 at 1533 per Chadwick LJ (Potter LJ agreeing), CA. See also Scott v Wise [1986] 2 NZLR 484

    [6] See Gibbons v Wright (1954) 91 CLR 423 Neutral treatment indicated at 437-9; [1954] ALR 383; (1954) 28 ALJ 111; BC5400600 per Dixon CJ, Kitto and Taylor JJ; Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511 at 1533-4, 1535 per Chadwick LJ (Potter LJ agreeing), CA. See also Ford by his tutor Watkinson v Perpetual Trustees Victoria Ltd (2009) 75 NSWLR 42 Neutral treatment indicated at 57; 257 ALR 658; [2009] NSWCA 186; BC200905872 at [59] per Allsop P and Young JA

22. Applying these principles to the present context, the capacity issue must be considered in the context that this is an application for a carer visa, and the undertaking  is given by a sponsor to assist a relative who is seeking to care for them, as necessary, financially and in respect of accommodation.

23. The delegate referred in the decision record to reliance on the Carer Visa Assessment Certificate dated 19 May 2014, which gave the sponsor an impairment rating of 20 for “cognitive impairment” and made reference, in regards to brain function, to the sponsor having poor memory, attention and concentration. Unable to organise own affairs, recall medication taking. Difficulty comprehending what is said to her. The delegate had concerns on the basis of this information that the sponsors did not have capacity to understand the sponsorship undertaking and the sponsorship could not be considered to be in force if there was no legal authority in place conferring power on an appointee to make health and lifestyle decisions for the sponsor. The applicant was subsequently requested to provide evidence of such authority, and in response she provided a letter from the sponsor’s treating GP dated 18.4.2018 stating his opinion the sponsor was mentally competent to make her own decisions and an Appointment of Enduring Guardian signed by the sponsor in April 2018. The delegate was of the view this opinion of Dr Loh was inconsistent with the information in the CVAC and referred to r.1.15AA(3) to find that the latter was to be taken as correct.  The Tribunal finds this analysis to be legally flawed and the conclusion reached not reasonably open on the evidence when the capacity question is considered properly.

24. The CVAC referred to numerous medical reports that were considered that do not appear to have been looked at by the delegate, and do not appear on the Department file. In terms of ‘diagnoses’ of conditions the CVAC refers to dysphasia (a language disorder) and “cognitive impairment (CVA)” for the purposes of assessing impairment ratings to assess her need for care assistance to attend to practical aspects of daily life.  Regulation 1.15AA(3) requires the opinions contained in the CVAC specifically on matters mentioned in subregulation 1(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer only and not for any other purpose.  In any event, the CVAC provided no opinion as to the applicant’s mental capacity to give the sponsorship undertaking.   

25. On the other hand evidence in the Department file indicates that Dr Loh has been the sponsor’s treating GP since 2002. Dr Loh provided an opinion on 18 April 2018 that the sponsor is mentally competent. The applicant also provided an Appointment of Enduring Guardian, evidently following the request made by the delegate for such a document. As the delegate correctly indicated, such a document can only be provided by a person who has mental capacity, and to be legally valid it must be witnessed by a prescribed person. The fact that the applicant obtained an Enduring Guardian, witnessed by a legal practitioner, supports the contention that as at that time, she had mental capacity.  On the evidence before it, there is no basis for the Tribunal to reject the professional opinion of the applicant’s treating medical practitioner as to her mental capacity in 2018, and the Tribunal finds the sponsor had mental capacity at the time she signed the Sponsorship Form 40 in 2014.  

26. In reaching this conclusion the Tribunal has considered and agrees with the arguments put forward in the applicant’s representative’s submissions on this issue dated 1 September 2020 that the information in the CVAC report does not support a finding that the sponsor lacked mental capacity when signing the sponsorship form. The submissions argue that the weight of subsequent evidence provided, including recent hospital discharge reports, letters from her treating GP, Dr Loh’s and the appointment of enduring guardian point in favour of her having mental capacity up to this time. 

27. The correct approach to assessment of capacity being decision specific and dependent on the specific matter under consideration, the Tribunal is satisfied on the weight of evidence before it that the sponsor had mental capacity when signing the sponsorship form in 2014 and understood the undertaking she gave. 

28. For these reasons, the Tribunal is satisfied, at the time of application, the applicant was sponsored as required by the legislation and satisfies cl.836.213.

    Sponsorship is still in force and approved at time of decision

29. There is no evidence before the Tribunal that the sponsorship given by the sponsor in 2014 has been withdrawn.  On that basis the Tribunal finds the sponsorship continues to be in force at time of decision.

30. Having accepted that the sponsor gave an undertaking, the next issue for consideration is whether to approve the sponsorship, at time of decision. Sponsorship approval was described by the Full Federal Court in Babar as a discretion in respect of which there is no reference to content in the Regulations.[7]   The Full Court made clear that the Tribunal would be in error to apply the Department’s  policy as set out in PAM3 (the relevant text of which referred to in that judgement appears not to have been amended since then) as it is based on an erroneous view of the meaning of reg 1.20 and is not formulated on the basis that it is giving effect to the approval power: at [38]-[40]. 

    [7] See Babar v Minister v Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38 at [39]

31. Therefore, in the absence of any prescribed matters to consider, nor lawful policy guidance, in exercising its discretion to approve the sponsorship the Tribunal takes the following into account.  Upon questioning of the issue of the sponsor’s capacity by the Department in 2018, a new Form 40 was signed by her on 30 March 2018.  While not required under the Regulations, this evidences her ongoing intention to sponsor the applicant. The evidence before the Department and Tribunal is that the applicant is and has been the sponsor’s carer since the application was lodged, noting that the Tribunal has not, in this review, specifically assessed the visa applicant against this criteria and observes that substantial time has passed since the Department last assessed her against it.[8]  The Tribunal notes in this regard the primary visa applicant’s Statutory Declaration of 5 April 2018 confirming the care she provides and also indicates she has accommodation and her financial needs are met by her husband and sons. This evidence indicates the visa applicant’s accommodation and financial needs are able to be met by members of her family unit who have income earning capacity.  There is no information before the Tribunal to indicate, or suggest it has been, or will be, necessary to provide financial or accommodation assistance for the visa applicants or any other basis for why the sponsorship should not be approved. 

    [8] CLF2018/17147, folio 346-347

32. Given that the sponsorship has not been withdrawn and is still in force, there are no prescribed limitations on sponsorship, and the matters considered above, there is no basis for the Tribunal to not approve it.

33. For these reasons, the Tribunal approves the sponsorship and finds the visa applicant meets cl.836.227.  

34. 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

35. 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 Sripathy
    Member