ZHANG (MIGRATION) - [2021] AATA 4975

ZHANG (MIGRATION) [2021] AATA 4975 (11 OCTOBER 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Xueling Zhang
Mr Shiying Ye
CASE NUMBER:  1934844
HOME AFFAIRS REFERENCE(S):          CLF2015/61341
MEMBER:Russell Matheson
DATE:11 October 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 Subclass 836 (Carer) visas are met:
· cl.836.213 of Schedule 2 to the Regulations; and
· cl.836.227 of Schedule 2 to the Regulations.

Statement made on 11 October 2021 at 5:18pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – approved sponsorship – sponsor’s dementia with extreme decline in cognitive function – son appointed guardian and financial manager – no relatives in Australia can provide care and no aged care facility available – decision-making capacity at times of application and decision – sponsor understood obligation when application made – diagnosis of dementia does not mean person has lost all mental capacity – understanding of obligation not a requirement of legislation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.20, Schedule 2, cls 836.111, 836.212, 836.213, 836.227
CASES
Babar v MICMSMA [2020] FCAFC 38
Lo v MICMSMA [2020] FCA 895
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 6 December 2019 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 are nationals of China. They applied for the visas on 2 October 2015. The delegate refused to grant the visas on the basis that cl.836.227 was not met because the sponsorship was not approved. The applicants seek review of the delegate’s decision.
The applicants appeared before the Tribunal on 25 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s son Mr Shao Feng Zhang. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. Ms Li (the sponsor) was unable to attend the hearing due to health issues.
Relevant law
At the time the application was made, 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 criteria for the grant of a Subclass 836 visa.
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…

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 ZHANG (MIGRATION)

Details

AGLC: ZHANG (MIGRATION) [2021] AATA 4975
Case: [2021] AATA 4975
Decision Date: 11 OCTOBER 2021

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, ZHANG, regarding a Subclass 836 (Carer) visa. The dispute arose when the Department of Home Affairs (the delegate) refused to approve the sponsorship, which was a requirement for the visa. The sponsor was the applicant's mother, an Australian citizen, who had been diagnosed with dementia with an extreme decline in cognitive function. The delegate's decision was based on the sponsor's perceived inability to understand her sponsorship obligations and the lack of a legal authority to make decisions on her behalf. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the sponsorship requirements were met at the time of the application and at the time of the decision.

The Tribunal considered two key legal issues. Firstly, whether the sponsor met the requirements of clause 836.213 of the Migration Regulations 1994 at the time of the visa application, which mandates sponsorship by a settled Australian relative. Secondly, the Tribunal had to assess whether the sponsorship was approved and still in force at the time of the decision, as required by clause 836.227. This second issue involved determining whether the sponsor's diagnosed dementia and the appointment of a guardian and financial manager impacted her capacity to provide sponsorship.

In its reasoning, the Tribunal relied on the Full Federal Court's decision in *Babar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs*, which established that for the purpose of sponsorship criteria, the giving of the undertaking simpliciter at the time of application is sufficient, and no assessment of the sponsor's capacity to fulfil the undertaking is required. The Tribunal found that the sponsor had provided the signed sponsorship form at the time of application, thus satisfying clause 836.213. Regarding clause 836.227, the Tribunal noted that while the sponsor had dementia, the legal principle is that a diagnosis of dementia does not automatically mean a person lacks all mental capacity. The assessment of mental capacity is decision-specific, and the fundamental issue is the ability to understand the general nature of what one is doing. The Tribunal concluded that the delegate had not adequately considered whether the sponsor understood the nature of her sponsorship obligations at the time she provided them, nor had it sufficiently explored whether her condition prevented her from understanding the undertaking.

Consequently, the Tribunal found that the delegate's decision was not based on sufficient evidence or legal reasoning. The Tribunal remitted the matter to the delegate for reconsideration, with directions to properly assess the sponsor's capacity at the time of the application and to determine if the sponsorship was still in force.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As sponsorship is part of the decision and is not assessed separately, the Tribunal has made a decision based on the evidence provided. CONSIDERATION OF CLAIMS AND EVIDENCE Clause 836.213 requires that at the time of application the visa applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18, is a settled Australian citizen, permanent resident or an eligible New Zealand citizen, and is usually resident in Australia. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. The evidence before the Tribunal, which the Tribunal accepts, is that at the time of the application, the visa applicants were sponsored in the application by applicant’s mother who was over the age of 18. She is an Australian citizen and a settled resident of Australia. The applicants were sponsored in the application by the applicant’s mother. In assessing whether the time of application criteria in cl.836.213 are met, the Tribunal adopts the reasoning in the decision in Huang case number 1815336 (differently constituted) where the following was stated: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] Since the delegate’s decision, there has been some relevant judicial consideration of these issues. Specifically, the caselaw establishes 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 Full Federal Court stated ‘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. 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. 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 necessarily sit well with the conclusions 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.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 that Babar makes clear no issue arises as to the sponsor’s capacity to fulfil the undertakings.Therefore, on the authority of the Full Federal Court in Babar, the Tribunal finds, on the evidence of the signed Form 40 Sponsorship dated 15.12.2016, the applicant was sponsored at the time of the application and meets cl.836.213.[1] Regulation 1.20(1), (2).[2] [2020] FCAFC 38 at [36]. [3] [2020] FCA 895.

Decision

Reasons for decision

Accordingly, the Tribunal is satisfied that at the time of the application the visa applicant was sponsored as required by the legislation and satisfies cl.836.213.Are the sponsorship requirements met at the time of the decision? At the time of the decision, the visa applicant is required to meet cl.836.227, which requires that the sponsorship referred to in cl.836.213 has been approved by the Minister and is still in force. The basis of the Department’s decision was that the delegate considered the sponsor did not have the ability to understand the sponsorship obligations and no person or agency had the legal authority to make financial, health and lifestyle decisions on behalf of the sponsor. As the delegate was not satisfied, based on any substantial empirical legal documentation that met the required evidentiary standard, that the sponsor or any person on her behalf had the mental capacity to give the sponsorship undertakings, the delegate did not approve the sponsorship. In coming to this decision, the delegate noted that at the time the visa application was made, the sponsor was suffering from medial conditions including the following: A declining cognitive function was already present 4-5 years prior to applying for the visa. She has been assessed by an Aged Care Specialist and diagnosed with Alzheimer’s Dementia. Her dementia was assessed as having an extreme impact on her level of functioning at the time of application. In the CVAC the sponsor was also awarded the highest possible rating under Table 7 - Brain Function i.e. 30 points. The Social Security Act 1991 states that a rating of 30 under Table 7 - Brain Function reflects "an extreme functional impact resulting from a neurological or cognitive condition.” The assessment of whether an individual has the mental capacity to give an undertaking or make other decisions in their lives 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 where decisions are to be made and an individual’s capacity to understand the issues put before them. Simply because a person may be suffering dementia, or some other intellectual disability does not mean that they do not have the capacity to make certain decisions in their lives. The Law Society of NSW produced a Practical Guide for Solicitors – When a Client’s Mental Capacity is in Doubt in 2016.. In this guide, under the heading: What is “Mental Capacity”?, the following was stated:There is no single legal definition of mental capacity in New South Wales. Rather, the legal definition of mental capacity depends in each case on the type of decision which is being made or the type of transaction involved.[4]This means there are a variety of legal tests of mental capacity. Some are contained in legislation such as the Guardianship Act 1987 (NSW) and others have been developed in common law, such as the test for testamentary capacity.The different legal tests for mental capacity mean that a client may have the mental capacity to make some decisions, such as deciding whether to make small purchases like groceries, but may lack the mental capacity to make other decisions such as deciding whether to enter into more complicated financial arrangements. A finding of incapacity in one area does not automatically mean that mental capacity is lacking in another area; for example, the Supreme Court of NSW has found that a person who is incapable of managing their financial affairs may still be mentally capable of making a will[5]. It has been suggested that the same mental capacity may not be necessary to revoke a will as to make one[6]. Similarly, lesser mental capacity may be needed for a codicil than a will[7]. A person may not be capable on managing their affairs but have the mental capacity to make an enduring power of attorney[8]. A person may not have the mental capacity to make a contract but have capacity to make a will[9]. Similar, if not greater, mental capacity is needed to make a power of attorney compared to that required for a will[10]… Despite the many different legal tests for mental capacity, the fundamental issue is whether the client is able to understand the general nature of what they are doing[11]. If a client has ongoing difficulty in demonstrating this level of understanding, then this may indicate a lack of mental capacity which warrants further exploration by the solicitor. [4] Gibbons v Wright [1954] HCA 17.[5] Re Estate of Margaret Bellew [1992] Supreme Court of NSW, Probate Division (Unreported) McLelland J, 13 August 1992.[6] d’Apice v Gutkovich - Estate of Abraham (No. 2) [2010] NSWSC 1333, [96], Public Trustee v Elderfield; estate of Poole (Supreme Court of NSW, Young J, 26 April 1996, unreported).[7] Hay v Simpson (1890) 11 LR (NSW) Eq 109.[8] Re K [1988] 1 Ch 310.[9] Banks v Goodfellow (1870) LR 5 QB 549 citing Stevens v Vancleve (1822) 23 F. Cas. 35.[10] Szozda v Szozda [2010] NSWSC 804.[11] In CJ v AKJ [2015] NSWSC 498 at [32] the court stated: “The general law does not prescribe a fixed standard of “capacity” required for the transaction of business. The level of capacity required of a person is relative to the particular business to be transacted by him or her, and the purpose of the law served by an inquiry into the person’s capacity: Gibbons v Wright (1954) 91 CLR 423 at 434-438”.

Ratio Decidendi

Legal Principle Established

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