Valenciano (Migration)

[2018] AATA 2341

Valenciano (Migration) [2018] AATA 2341 (26 June 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Liza Evangelista Valenciano
Mr Victor Nang Valenciano
Mr Victor Levi Evangelista Valenciano
Mr Victor Louie Evangelista Valenciano
Mr Victor Lorenz Evangelista Valenciano

CASE NUMBER:  1700673

DIBP REFERENCE(S):  CLF2016/31605

MEMBER:Russell Matheson

DATE:26 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 26 June 2018 at 2:24pm

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Capacity to fulfil sponsorship undertaking – Sponsor – Cognitive impairment – Visa applicant given Power of Attorney by the sponsor – Medically unfit to fulfil the sponsorship obligations – Decision under review affirmed

LEGISLATION
Migration Regulations 1994, rr 1.15AA, 1.20Schedule 1 Item 123B Schedule 2 cl 836.213

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 Immigration on 4 January 2017 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 24 May 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 carer 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.836.213.

3. The delegate refused to grant the visas on the basis that cl.836.213 was not met because the delegate was not satisfied that the sponsor could fulfil the sponsorship undertaking and had the capacity to understand the sponsorship obligation.

4. The applicants appeared before the Tribunal on 8 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant Mrs Liza Valenciano and two witnesses Mr Victor Valenciano and Mrs Sharon Brunell.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the sponsor has not only the ability to fulfil the sponsorship undertaking but also has the capacity to understand the sponsorship obligation.

8. The Tribunal has taken into consideration all the evidence in the Departmental case file CLF2016/31605, folios numbered 1-220, Tribunal’s case file 1700673, folios numbered 1-33  and the oral evidence given at the Tribunal’s hearing.

9. The evidence the applicant and witnesses provided at the Tribunal hearing is recorded throughout this decision record.

   Background

10. The sponsor (resident) completed and signed the sponsorship declaration via form 40 ‘sponsorship for migration to Australia” in which she declared and agreed to the sponsorship obligation on 27 April 2016.

11. The Department received a BUPA carer Visa Assessment Certificate dated 11 December 2015, which states the sponsor had been diagnosed with ‘Cognitive impairment due to semantic dementia, or Alzheimer’s disease’. The CVAC states that regarding brain function that:

    ·“Mrs Boyd-Skinner (sponsor) suffers from cognitive impairment due to semantic dementia Alzheimer’s disease.  Her condition is deteriorating. Neuropsychiatric assessment showed moderate to severer deficits in memory and verbally mediated aspects of executing functioning. On assessment she was unsure where she was and for what purpose, she required cues from her daughter.

12. The applicant provided to the Department a Statutory Declaration dated 13 September 2016 that, to the best of her knowledge, her mother (sponsor) understands and approves of her sponsorship obligations and undertakings.

13. The applicant was previously requested by the Department if any person had any legal authority in place at the time of application which is associated with the sponsor, and they provide a copy of that document, and a statement from each party addressing their support for the carer visa application. If a State Public Guardian had been appointed then the Department would require a letter from that office supporting the sponsorship.   

14. The applicant has provided correspondence through her agent dated 7 March 2018 stating that she was given Power of Attorney by the sponsor in October 2015. The applicant did not provide any other evidence that there is an enduring power of attorney in place.

15. The applicant also provided to the Department a statement dated 9 September 2016 from Dr Hadrian Jet Lee that the sponsor had attended his practice that day with her daughter (the applicant). He declared that he had been caring for the sponsor for the past six months as of  9 September 2016. He further stated that he believes that the sponsor understood her enduring power of attorney when it was done in October 2015 and he believes the sponsor at that time was able to understand its meaning when it was done. Dr Lee also states that the sponsor prior to 9 September 2016 had been treated by Dr Korner at the Village Medical Centre for the previous 10 years and was also under the care of a neurologist Dr Andrew Duggins.

    Hearing

16. At the start of the hearing the Tribunal enquired if any person had any legal authority over the sponsor such as an enduring power of attorney or enduring guardian. The applicant’s migration agent made a submission on behalf of applicant. The agent informed the Tribunal that the applicant was not an enduring guardian because she was not an Australian citizen and that could only occur if power of attorney was handed over to a State Public Guardian.

17. The Tribunal questioned the applicant if there was any evidence that could be provided that showed the sponsor has not only the ability to fulfil the sponsorship undertaking but also has the capacity to understand the sponsorship obligation. The applicant responded through her migration agent that she cannot provide any evidence assessing the ability or capacity of the sponsor to fulfil her sponsorship obligations and that the applicant had sought the medical opinions of two doctors. She further stated that the doctors could not give an opinion as to whether the sponsor could fulfil her sponsorship obligations at the time of application. 

18. The applicant produced correspondence from Dr Lee dated 7 March 2018 stating that he saw the sponsor between March and July 2016. Dr Lee states that the sponsor’s consultations mainly involved acute issues and her newly diagnosed colorectal cancer. He also stated that no formal capacity examination/testing was done at the time, and that from the information available he  could not be satisfied he could answer the question in regards to her capacity on 27 Aril 2016. No other medical documentation was provided to the Tribunal at the hearing. As previously stated the sponsor was treated by Dr Korner for the previous 10 years and was at the time of application being treated by her neurologist Dr  Duggins. Neither doctor provided any statements to the Tribunal in relation to the sponsors health or medical treatment.

19. The applicant did not provide the Tribunal a copy of the delegate’s decision record. The Tribunal asked the applicant if she was aware of the delegate’s decision and the reasons for his decision. The Tribunal also asked if the applicant was aware of the Bupa medical assessment of her mother, the sponsor, and the information contained in the report. The applicant said yes to both questions and stated that she attended the Bupa assessment with her mother.

20. The Bupa medical assessment dated 11 December 2015 summarises the sponsor as a 73 year old woman with multiple medical problems. Her main condition affecting her ability to function and carry out her activities of daily living is cognitive impairment due to semantic dementia, or Alzheimer’s disease. Her situation is compounded by a left supraspinatus tear and osteoarthritis of her right knee. She requires assistance with most activities of daily living including dressing, feeding, showering, supervision of medication, supervision to prevent harm and transportation. The Bupa assessment was undertaken some four and a half months before the sponsor signed her sponsorship for migration to Australia (form 40). 

21. The applicant told the Tribunal that she believed that the sponsor at the time was aware of what she was signing when she signed the form 40. She further stated that the sponsor’s condition was slowly deteriorating and she still had memory. The applicant said that the sponsor talked with the family and knew the time would come. The applicant also told the Tribunal that the sponsor had two consecutive operations and the sponsor’s memory was deteriorating and that it is hard work but she is willing to care for the sponsor. The applicant said that every day when her mother wakes she looks for her to prepare breakfast because her mother does not recognise food and is not capable of cooking. The applicant said that she was not working and that Anglicare attends to the sponsor’s needs for one and a half hours three times a week. The applicant said that the experience of raising her three boys held her in good stead to care for her mother because she was like her youngest child. The applicant also said that she had the assistance of her husband and three sons to care for the sponsor. The applicant also told the Tribunal there are no other family members in Australia to care for the sponsor. The sponsor attended the hearing but was unable to participate or give evidence due to her condition.

22. Mrs Sharon Brunell provided evidence to the Tribunal that she worked with the sponsor for 10 years prior to her retirement in November 2015. The witness said that the sponsor showed no signs of dementia for the period 2012 to 2014. She further stated that the sponsor was forgetful sometimes but nothing major and the sponsor did not strike her as a person who needed a high level of care prior to her retiring. The witness said that the applicant and her family were good people and the sponsor deserved to live in Australia with the care and support of her family. The witness did not provide any evidence of having any medical expertise in diagnosing dementia or Alzheimer’s disease. The Tribunal places little weight on the evidence of the witness as her evidence relates to periods of time significantly before the sponsor signed the form 40 sponsorship obligation on 27 April 2016.

    SPONSORSHIP

    Are the sponsorship requirements met?

23. 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 of the Regulations (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 sponsorship undertakings in Reg 1.20

    (1)The sponsor of an applicant for a visa is a person (except a person who proposes on the relevant approved form another person for entry to Australia as an applicant for a permanent humanitarian visa) who undertakes the obligations stated in sub-regulation (2) in relation to the applicant.

    (2)Subject to sub-regulation (4), the obligations of a sponsor in relation to an applicant for a visa are the following: 

    (a)if the application is for a Skilled — Regional Sponsored (Provisional) (Class SP) visa, or a permanent visa (other than a Partner (Migrant) (Class BC) or Partner (Residence) (Class BS) visa) — the sponsor undertakes to assist the applicant, to the extent necessary, financially and in relation to accommodation:

    (i)if the applicant is in Australia — during the period of 2 years immediately following the grant of that visa; or

    (ii)if the applicant is outside Australia — during the period of 2 years immediately following the applicant's first entry into Australia under that visa;

    Including any period of participation by the applicant in the program known as the Adult Migrant English Program administered by Immigration that falls within that period.

24. There is nothing in the Act or the regulations which requires decision makers to:

    ·    Satisfy themselves that the sponsor can meet the financial needs of the applicant; or

    ·    Assess the risk of whether or not the sponsor can provide sufficient support for the applicant; or

    ·    Satisfy themselves that the sponsor has the ability to understand and fulfil the sponsorship undertaking;

25. Other factors suggest otherwise, stating that under policy the sponsor’s health is not a relevant factor in assessing whether or not they can meet sponsorship obligations to be approved as a sponsor.

26. The requirement that the sponsor understood her sponsorship undertaking and obligation, at the time of application, is neither a requirement under the Act or the regulations. Once the undertaking has been given by the sponsor, the obligation has been met. The Tribunal has considered the evidence as to whether the sponsor meets this requirement.

27. The applicant’s migration agent provided information which included the following:

    ·It is contended by the applicant’s agent that the power of attorney given by the sponsor to the applicant in October 2015 is irrelevant because the mere making of a power of attorney in no way implies that a person is, or is about to, lose any degree of mental capacity. More importantly, however, the fact is that it was the sponsor herself who signed the sponsorship form on 27 April 2016. It should be noted that the applicant did not provide a copy of a power of attorney document to the Tribunal.

    ·There can be no doubt from the medical evidence currently available to the Tribunal that the sponsor needs the applicant (her daughter) to stay with her to care for her. There are no other relatives available to provide that case, and the available community assistance is insufficient to address her mother's full-time needs.

    ·The question of capacity must be approached in the context of what it was that the sponsor was purporting to do when the sponsor signed the sponsorship form on that date. To do otherwise in a case where the need for care arises from a neurological condition such as the sponsor’s would be to create a classic ’Catch-22’ situation: the existence of the need for care would undermine the legal ability to get that care. This would directly contradict the purpose of the legislation, which refers in r.1.15AA (1)(b)(iii) to a medical condition that is causing ’physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life’.

    ·The NSW Department of Justice has published guidelines on the assessment of capacity known as the Capacity Toolkit. Section 3 of Toolkit 1 contains six ’Capacity assessment principles", number 2 of which states that ’capacity is decision specific’. The legal test for assessing a person's capacity to sign a document is explained in Section 5 by the formula ’CAPACITY = UNDERSTANDING THE NATURE + EFFECT OF THE DOCUMENT AT THE TIME IT IS MADE’.

    ·The agent further states that In the context of an application to sponsor her daughter to remain in Australia as her carer, the only thing that the sponsor needed to have the capacity to do was to understand that she was requesting that her daughter and family be allowed to stay in Australia to look after her and was undertaking to assist them, to the extent necessary, financially and in relation to accommodation, during the period of two years immediately following the grant of the visa – r.1.20(2)(a).

28. The Tribunal accepts that the NSW Department of Justice has published guidelines on the assessment of capacity known as the Capacity Toolkit. The applicant did not provide any evidence that the sponsor had her capacity assessed prior to agreeing to her undertaking an obligation. In fact the sponsor’s doctor has provided evidence that no formal capacity examination/testing had been done when the sponsor agreed to the sponsorship undertaking and obligation on 27 April 2017. The Tribunal understands that providing such an assessment is not a prerequisite to agreeing to the sponsorship undertaking and obligation.

29. In the context of an application to sponsor her daughter to remain in Australia as her carer, the representative contended that the only thing that the sponsor needed to have the capacity to do was to understand that she was requesting that her daughter and family be allowed to stay in Australia to look after her and was undertaking to assist them, to the extent necessary, financially and in relation to accommodation, during the period of two years immediately following the grant of the visa – r.1.20(2)(a). Although the Tribunal may accept that is a consideration the Tribunal has also considered whether the sponsor can actually fulfil her obligations (which are considered upon approval of the sponsorship). The question of whether the sponsor is required to understand the requirements of an undertaking in order to make one is a separate consideration to whether the sponsor can in fact provide the assistance. Based on the medical evidence provided by the sponsor’s own doctor and the Medical officer of the Commonwealth (MOC) opinion the Tribunal does not find that the sponsor can actually fulfil her sponsorship obligations at the time of decision.

30. The applicant did not provide evidence to the Tribunal that the sponsor could not obtain the appropriate medical care and support or community assistance for her illness in Australia. The Tribunal accepts there are no other relatives in Australia who can provide care and support to the sponsor. The Tribunal accepts that the sponsor would have a limited capacity to attend to the practical aspects of daily life.

31. The Tribunal has considered the evidence submitted in assessing whether the sponsor understood her sponsorship undertaking, given that she suffers from a ‘Cognitive impairment due to sematic dementia or Alzheimer’s disease’.

32. The Tribunal understands that ‘dementia’ is of a degenerative nature in terms of the sponsor’s medical condition, which can present in different ways causing changes to a person’s memory, communication and functioning. The applicant’s migration agent put forward that there is nothing in the Act or the regulations that requires the Minister to be satisfied that a sponsor has the ability to understand the sponsorship undertaking. Regulation 1.20 provides that the sponsor for a visa applicant is a person who undertakes the obligations in r,1.20(2). The Tribunal understands that r.1.20 does not include a separate requirement to consider the sponsor’s intellectual capacity.   

33. The applicant provided a legal authourity made since the sponsor was diagnosed with Dementia and a letter to the Department from the sponsor’s General Practitioner, Dr Lee, stating that he had been caring for the sponsor since 9 September 2016 and he believed the sponsor understands and approves of her sponsorship obligations and undertakings. The Tribunal places little weight on the doctor’s statement based on the fact he provided evidence that he could not answer the question in regards to her capacity on 27 April 2016. 

1. As previously stated the applicant produced correspondence from Dr Lee dated 7 March 2018 stating that he saw the sponsor between March 2016 and July 2016. Dr Lee states that the sponsor’s consultations mainly involved acute issues and her newly diagnosed colorectal cancer. He further stated that no formal capacity examination/testing was done at the time. Dr Lee also states that from the information available he is not satisfied he can answer the question in regards to her capacity on 27 April 2016.  

2. The applicant also provided a statutory declaration to the Department on 19 September 2016 stating to the best of her knowledge her mother (the sponsor) understands and approves of her sponsorship obligations and undertakings. The Tribunal finds that it is only natural that the applicant ( the daughter) believes that the sponsor (her mother) understands and approves of her sponsorship obligations and undertakings. The Tribunal accepts the applicant’s evidence that she believes the sponsor (her mother) understood her undertakings and obligations at the time of application.

3. The sponsor was treated by Dr Korner for the previous 10 years and was at the time of application being treated by her neurologist Dr Duggins. The applicant did not provide any statements to the Tribunal in relation to the sponsors health or medical treatment from her previous treating GP or Neurologist.

4. As sponsorship is part of the decision and is not assessed separately. The Tribunal has made a decision based on the evidence provided.

   FINDINGS

5. The evidence before the Tribunal is that at the time the visa application was made, the sponsor was suffering from medical conditions including the following: cognitive impairment due to semantic dementia, or Alzheimer’s disease.  Her condition is deteriorating. Neuropsychiatric assessment showed moderate to severer deficits in memory and verbally mediated aspects of executing functioning. While the applicant provided evidence that to the best of her knowledge the sponsor (her mother) understands and approves of her sponsorship obligations and undertakings in her statutory declaration forwarded to the Department on 19 September 2016, it is not clear how she holds this understanding because she also provided evidence that she attended a Bupa functional assessment with the sponsor on 11 December 2015. The Bupa assessment states that the sponsor was unsure where she was and for what purpose, and the sponsor required cues from her daughter. The applicant had previously told the Tribunal she was aware of the information contained in the functional assessment report prepared by the MOC.

6. The MOC also considered medical reports from:

   ·Dr J Korner (GP) dated 20/8/2015 and 2/12/2015

   ·Dr C Hurelbrink (Neurologist) dated 23/10/2014

   ·Dr Andrew Rock (Neuropsychologist) dated 20/9/14.

7. Having considering the evidence individually and as a whole the Tribunal is satisfied that there is no evidence that, at the time of application, a person had a Power of Attorney or legal responsibility in regard to the sponsor.  There is no information from a medical professional stating that the sponsor understood her sponsorship undertakings at the time of application. The question of whether the sponsor is required to understand the requirements of an undertaking in order to make one is a separate consideration to whether the sponsor can in fact provide the assistance. As a result the Tribunal is not satisfied that the sponsor understood the sponsorship undertakings or that another person could commit to the undertakings on the sponsor’s behalf.

   Other considerations

8. The applicant’s migration agent put forward that there isn’t any clear evidence that the sponsor did not have the capacity to understand her sponsorship undertakings or have the capacity to understand the sponsorship obligation. Although there is no requirement to provide expert medical advice to support that the sponsor could actually fulfil their obligations (which are considered upon approval of the sponsorship) there is no clear evidence to indicate that she had the capacity to understand the sponsorship undertaking. The question of whether the sponsor is required to understand the requirements of an undertaking in order to make one is a separate consideration from whether the sponsor can in fact provide the assistance. The Tribunal considered the medical reports submitted and information contained in the functional assessment report prepared by the MOC. The Tribunal places considerable weight upon the MOC opinion made on 11 December 2015 which states the sponsor was suffering from medical conditions including the following: cognitive impairment due to semantic dementia Alzheimer’s disease.  Her condition is deteriorating. Neuropsychiatric assessment showed moderate to severer deficits in memory and verbally mediated aspects of executing functioning. Based on the evidence provided the Tribunal finds that the sponsor did not have the capacity to understand her sponsorship undertakings or have the capacity to understand the sponsorship obligation.  

9. Regulation 1.20 provides that the sponsor for a visa applicant is a person who undertakes the obligations in r.1.20(2).

10. The Oxford dictionary defines undertakes as to commit oneself to and begin (an enterprise or responsibility) or promise to do a particular thing.  The Macquarie Dictionary definition includes warranting or guaranteeing to take on a task. While obligations are defined as an act or course of action to which a person is morally or legally bound; a duty or commitment. 

11. The Tribunal is satisfied, having regard to the plain dictionary meaning of ‘undertakes’ and ‘obligations’ that a sponsor commits to a course of action as detailed in r.1.20(2). The Tribunal is further satisfied that if an individual lacks the requisite mental capacity to make such a commitment or guarantee they are unable to make a sponsorship undertaking. While there is no express requirement in the Act or Regulations that the Minister be satisfied that they understood the sponsorship undertaking, the plain meaning of ‘undertake’ requires that the person understand what it is they are undertaking to do.

12. Having considered the evidence individually and as a whole the Tribunal is not satisfied that the applicant was sponsored as required by the legislation and therefore the applicant does not satisfy cl.836.213.

13. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. Therefore, the second, third, fourth and fifth named visa applicants do not meet cl.836.321 of Schedule 2 of the Regulations.

    DECISION

14. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Russell Matheson
    Member