ZHANG (MIGRATION)
[2021] AATA 4975
•11 OCTOBER 2021
ZHANG (MIGRATION) [2021] AATA 4975 (11 OCTOBER 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mrs Xueling Zhang
Mr Shiying YeCASE 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 remittedLEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.20, Schedule 2, cls 836.111, 836.212, 836.213, 836.227CASES
Babar v MICMSMA [2020] FCAFC 38
Lo v MICMSMA [2020] FCA 895Any 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 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.
At the time of decision, the sponsorship must be approved by the Minister and be in force – cl. 836.227. Sponsorship undertakings are set out in r.1.20.
Whether the applicant has claimed to be the ‘carer’
Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s mother who is a settled Australian Citizen.
For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.
Therefore, at the time of application the applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl.836.212.
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 applicants were sponsored in the application by the applicant’s mother. The legislation in relation to sponsorship states:
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.
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.
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.
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.
Background
The primary decision record indicates that a Carer Visa Assessment Certificate (CVAC) dated 24 September 2015 was provided with the application. In this document it was reported that the sponsor had declining cognitive function for four to five years and was suffering from Alzheimer’s dementia. It was also stated that her cognitive function had further deteriorated during a recent hospital visit and she had shown signs of likely delirium on top of her dementia.
The sponsor was awarded (under the Impairment Tables (within the meaning of subsection 23 (1) of the Social Security Act 1991)), the maximum score of 30 points against Table 7-Brain Function. The assessing medical officer assessed her dementia as having extreme impact on her current level of functioning.
On 23 June 2016, the Department requested evidence of any person having legal authority in association with the sponsor at the time of lodging the application.
In response, the Department received a letter dated 28 June 2016 from the sponsors GP of eight years stating that the sponsor understands the sponsorship obligations and undertakings outlined in Form 40.
Upon release of the application from the global queue, the Department deemed it appropriate to revisit whether the sponsor continued to retain the capacity to understand the sponsorship obligations in order to determine if her sponsorship could be approved at the time of decision of the application.
On 26 September 2019, the Department wrote to the sponsor explaining that the information contained in the CVAC indicated she may not have the capacity to understand the sponsorship obligations.
The Department’s letter invited the sponsor to provide further medical evidence that she understands the sponsorship obligations or evidence that appropriate legal authority is in place for another person to make decisions (including financial, health and lifestyle decisions) on behalf of her for the purpose of sponsoring the applicant for a carer visa.
The sponsor was given 28 days to respond to the request. On 18 November 2019, the sponsor provided the following:
· A submission from her migration agent;
· A letter from her local GP (Dr Shan Lin) dated 2 November 2019;
· A submission from the applicant’s brother;
· Evidence of the applicant’s brother’s financial position (PAYG summary and bank balances);
· Evidence of the applicant’s brother’s wife’s income; and
· Evidence of the applicant’s brother’s and his wife’s property ownership.
Hearing
The applicant provided the following documents to the Tribunal:
·A copy of the delegate’s decision record;
·A letter from her local GP (Dr Shan Lin) dated 2 November 2019;
·A letter from another GP (Dr Jing Zhao) dated 12 July 2020;
·A Guardianship Order dated 11 February 2020; and
·A financial Management Order dated 11 February 2020.
The Tribunal notes that the primary decision was based on the fact the applicant failed to present a power of attorney or a medical certificate concerning the sponsor’s capacity at the time of the application. The delegate was not satisfied that the sponsor would have the capacity to comprehend the scope and extent of the undertaking obligations at the time of the decision and discharge the sponsorship obligations.
On 11 February 2020 the following Guardianship Order was made:
- A guardianship order is made for YinYing Li.
- Shao Feng Zhang of [Address] is appointed as the guardian.
- This is a continuing guardianship order for a period of 24 months from 11 February 2020.
- This is a limited guardianship order giving the guardian(s) custody of YinYing Li to the extent necessary to carry out the functions below.
FUNCTIONS:
- The guardian has the following function:
a)Other Function
to make all necessary decisions regarding visa related matters that would ordinarily be made by YinYing Li.
On 11 February 2020 the following order was made:
1.The estate of YinYing Li is subject to management under the NSW Trustee and Guardian Act 2009.
2.Shao Feng Zhang of [Address] is appointed as the financial manager of the estate.
NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.
The sponsor’s son during the hearing gave evidence that he has made enquiries with aged care providers and is unable to find a placement for his mother. He further stated that there is a 3-4 year waiting list to gain access to an aged care facility. The sponsor’s son provided evidence that he is unable to care for his mother because he works full time and that she will not let any other person care for her other than the applicant. The Tribunal accepts that the sponsor’s son is unable to care for her due to his work commitments and the sponsor wishes the applicant to care and support for her daily needs. The Tribunal accepts there are no other relatives in Australia who can provide care and support to the sponsor. Neither the applicant nor the sponsor provided evidence that the sponsor could not obtain the appropriate medical care and support or community assistance for her illness in Australia. The Tribunal accepts that the sponsor would have a limited capacity to attend to the practical aspects of life.
At the time of application there was no Power of Attorney or Guardianship order or a medical certificate concerning the sponsor’s capacity to understand the sponsorship obligations or retain her capacity in order to determine if her sponsorship could be approved at the time of decision of the application.
The applicant’s migration agent did not attend the hearing but has previously made a written submission to the Department. In his submission, the migration agent outlined details of another carer visa application for which he was the appointed migration agent. He also provided a copy of correspondence sent to him from the Department asking for documents relevant to power of attorney for the sponsor for that application and/or evidence that other persons were able to fulfill the sponsorship obligations on their behalf. The agent stated:
We believe the Department still holds the same standard to consider the same nature of the circumstance and supporting documents.
The Tribunal accepts that the migration agent’s experiences in a different application may have been favourable depending on the circumstances of the case. However, the Tribunal assesses each case on its own individual merits based on the evidence presented. As such, the Tribunal places little weight on the migration agent’s submission.
The sponsor’s son provided as evidence to the Tribunal that he has guardianship to make all necessary decisions regarding visa related matters that would ordinarily be made by the sponsor and financial management of the sponsors estate. The Tribunal notes that the guardianship was made 52 months after the visa application. The Tribunal questioned the sponsor’s son whether he was able to ascertain from his mother that she understood the sponsorship obligations and undertakings outlined in Form 40. The sponsors son responded that his mother has total memory loss and cannot understand anything about her visa application. The Tribunal accepts that the sponsor’s son has guardianship of his mother and is able to make decisions on her behalf regarding the visa application. Based on the evidence presented she may not be able understand the sponsorship obligations and undertakings at the time of decision.
The Tribunal accepts that the applicant has provided evidence that Mr Shao Feng Zhang (son) and Ms Weixing Tan (daughter) appear adequately placed financially to fulfil the sponsorship obligations on behalf of the sponsor if required to do so.
However, the question of whether the sponsor is able to understand the requirements of an undertaking in order to make one is an entirely separate consideration from whether the sponsor can fulfil the obligations.
The applicant provided as evidence to the Tribunal and Department letters dated 28 June 2016, 29 September 2019, and 2 November 2019 from the sponsors GP (Dr Lin). In the June 2016 letter the GP states that the sponsor understands the sponsorship obligations and undertakings outlined in Form 40. The sponsors son gave evidence that he attended the doctor’s surgery in June 2016 with his mother and heard the doctor question his mother if she understood the sponsorship obligations and undertakings and she responded yes. The Tribunal accepts that the sponsor’s son may have heard the sponsor’s doctor ask the relevant questions regarding sponsorship and she may have responded to the question in a positive manner.
In the September 2020 letter the GP states the sponsor is suffering from moderate to severe dementia and requires supervision 24 hours a day. In the letter dated November 2019 the GP states the sponsor is suffering from dementia and depression and she is dependent on the applicant for her daily living and mental health and has refused all other carers. The Tribunal accepts the applicant is caring for the sponsor who has dementia.
The applicant also provided a letter from Dr Jing Zhao dated 12 July 2020. The doctor states that the sponsor suffers from anxiety and depression and is dependent on her daughter for daily care and is anxious that her daughter may have to leave. The Tribunal accepts that the sponsor would have concerns that if her daughter was not granted a visa, she would have to leave the country, and this would cause some degree of anxiety and depression.
The applicant, her husband and the sponsor’s son gave evidence that the first indication or signs that the sponsor suffered from dementia was when she attended Concord Hospital on 3 September 2015 after she had an accident at home. They further stated that no one had any idea she had dementia prior to her attending the hospital. At the hospital the sponsor refused medication and treatment and became uncontrollable and could not communicate with hospital staff. The sponsor’s son gave evidence that after consulting with hospital staff and a social worker they indicated to him that the sponsor may have dementia.
The applicant gave evidence that the sponsor had been consulting with her doctor and that she was able to answer questions about her sponsorship and sign her signature at the time of the visa application. The Tribunal finds that it is only natural that the applicant (the daughter) believes the sponsor (her mother) understands and approves of her sponsorship obligations and undertakings. The Tribunal accepts the applicant’s evidence that she believes that the sponsor (her mother) understood the undertakings and obligations at the time of application.
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 Tribunal questioned the sponsors son as to whether he could provide any evidence that the sponsor had her decision-making capacity assessed prior to agreeing to her undertaking an obligation, he responded that her capacity to understand had not been assessed. The Tribunal understands that providing such an assessment is not a prerequisite to agreeing to the sponsorship undertaking an obligation. Overall, the Tribunal finds the medical evidence available to it regarding the sponsor’s capacity to understand the sponsorship obligations indicates that, at time of application and this decision, the sponsor (Ms Li) does not have the mental capacity to understand the sponsorship obligations.
The sponsor’s son gave evidence that he attended the Bupa assessment in September 2015 with the sponsor. He further stated that he believes the sponsor did not understand the questions being asked by the MOC at the time and the interpreter was on the phone. The Tribunal asked the sponsor’s son did he raise any issues or concerns about the questions being asked or the interpreter. The sponsor’s son stated that he did not make any comments or raise any issues or concerns with the MOC or interpreter during the Bupa assessment. There is little evidence to substantiate the sponsor’s sons claims and there is no reference in the MOC opinion as to the sponsor having any difficulties or needing any assistance with questions that were asked or the interpreter, and no issues were raised by the sponsor’s son at the time. The Tribunal accepts that the sponsor may have had some degree of difficulty answering questions and with interpretation due to the sponsor’s cognitive decline which was reported to have already been present for 4-5 years and her brain function reflects an extreme functional impact resulting from a neurological or cognitive condition.
The Tribunal places significant weight on the medical evidence presented in the CVAC dated 24 September 2015. In that document, the sponsor’s cognitive decline was reported to have already been present for four to five years. Ms Li 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.”
On 9 March 2021 the applicant’s son made a request to the Tribunal for an extension of time to provide further information to the Tribunal regarding the sponsor’s capacity to understand the sponsorship obligations. On 18 March 2021, the applicant’s son provided a medical report from Dr E Tam, Consultant Physician and Geriatrician dated 16 March 2021.
The sponsor was referred to Dr Tam by her GP who considered documents when assessing the sponsor that include but were not limited to:
·A Concord Hospital ED discharge referral dated 11 September 2015;
·A Concord Hospital discharge referral for the period 19 August 2015 to 11 September 2015;
·A completed Sponsorship for Migration to Australia Form 40 dated 16 September 2015;
·A Bupa Medical Visa Services Assessment Report dated 24 September 2015;
·A letter from Mr K B, Orthopaedic Intern, Orthopaedics Department, Concord Hospital dated 3 September 2015; and
·A letter from Dr Shao L dated 28 June 2016;
Dr Tam states that the sponsor’s cognitive and medical conditions include the following:
The sponsor was diagnosed with Alzheimer’s Disease in or about 2012 when her family members noticed her starting to have forgetfulness. The sponsor used to live by herself in Homebush West. She was dependent in mobility and activities of daily living at that time, with some supervision from her son. She was able to cook by herself and managed to visit Chinatown on her own. The sponsor lost her ability to speak Cantonese from about 2018 when she was noted to have more cognitive deterioration. Dr Tan performed the Mini Mental State examination on the sponsor on 8 March 2021, which she scored 3/30 (orientation 0/10, serial-7’s 0/5 recall 0/3). Glabellar and bilateral Palmomental reflexes are positive. Limb reflexes are normal and symmetrical. She walks with a subcortical gait and needs assistance with walking. The sponsor is continent and needs to be taken to the toilet by her daughter.
Dr Tam formed the following opinion regarding the sponsor:
The sponsor with her Alzheimer’s Disease, currently is medically stable and needs a carer to look after her on a 24-hour daily basis for her well-being and safety.
Prior to her admission to Concord Hospital on 19 August 2015, albeit with Alzheimer’s Disease. Ms Li (the sponsor) was living by herself and highly functioning in mobility and activities of daily living in her living environment and daily routines. She did domestic chores and cooked her meals. She was able to travel by herself by bus to Chinatown, did shopping and return. She called her family members. That means the sponsor had the metal capacity to make numerous decisions during the day to execute her planned activities without much problem.
The capacity to makes one’s own decisions is fundamental to the ethical principle of respect for autonomy. Mental capacity is possessed by every adult until being assessed as not having it. The sponsor was not assessed as not possessing Mental Capacity during her admission is Concord Hospital or at the Bupa Medical Examination. A person with a diagnosis of Dementia or Alzheimer’s Disease does not mean the person has lost Mental Capacity. It is highly probable that with a RUDAS score of 25/30 on 26 August 2015, the sponsor would be assessed as having lost her Mental Capacity.
On discharge from Concord Hospital to her home the sponsor was reported to have returned to her pre-admission cognitive condition, being alert, happy and feeling secured in loving care of her daughter Xueling Zhang (the applicant).
The sponsors son stated that at the time of the signing of the visa sponsorship Form 40 on 16 September 2015 the sponsor was in good general condition, alert and attentive. He explained the sponsorship obligations, and he was satisfied that she understood the content and context of her sponsorship undertakings. I (Dr Tam) examined her signature on the sponsorship form, which was firm and clear as signed by an alert and healthy person and appeared the same signature as she signed on the Direct Debit Request to Housing NSW on 12 August 2013.
The sponsor GP (Dr Lin) who speaks fluent Cantonese and Hakka, on 28 June 2016 sated that the sponsor understands the obligation and undertaking of sponsorship for Migration to Australia for her daughter.
In my opinion the sponsor at the time when the Carer Visa Application was submitted in September 2015, clearly understood the obligation and understanding of the Sponsorship for Migration to Australia for her daughter.
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.
The Tribunal is satisfied that at the time of the application, the applicants were sponsored in the application by the first named applicant’s mother who was the nominated sponsor of the visa applicants for the Carer visa. The Tribunal notes the sponsor suffered dementia at that time, however, simply a fact that a person suffers from dementia does not necessarily mean he or she does not have the mental capacity to make decisions in their life. In any event, the Tribunal is satisfied that the decision in Babar means that no issue arises as to a sponsor’s capacity to fulfil the undertakings. All that is necessary is that the visa applicant is sponsored by the Australian relative who has turned 18.
The Tribunal places significant weight on the letters dated 28 June 2016, 29 September 2019, and 2 November 2019 from the sponsor’s GP (Dr Lin). In the June 2016 letter her GP states that the sponsor understands the sponsorship obligations and undertakings outlined in Form 40 at the time of application.
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”.
On their website, Capacity Australia makes the following comments with regards to decision making capacity:
A person with a disability or medical impairment can still have decision-making capacity.
While a person may have a disability or medical condition, this does not mean that they lack decision-making capacity (the ability to make a decision). For example, a diagnosis of Alzheimer’s disease or other dementia, mental illness, intellectual or other cognitive disability or acquired brain injury does not automatically mean a person cannot make their own decisions. Just because you disagree with a decision does not mean the person who made it lacks decision-making capacity…
Capacity is decision specific – it depends on the decision being made.[12]
[12] Capacity Australia at
The applicant has provided reports from Dr Ernest Tam, the sponsor’s treating consultant physician and geriatrician. He has conducted various Mini Mental State Examinations where the sponsor was assessed as reaching various scores. In the report dated 8 March 2021, her scores were recorded as 3/30 (orientation 0/10, serial-7’s 0/5 recall 0/3).
The opinion given by Dr Tam in March 2021 is that the sponsor at the time when the Carer Visa Application was submitted in September 2015, clearly understood the obligation and understanding of the Sponsorship for Migration to Australia for her daughter.
On 11 February 2020 a Guardianship Order was made making the sponsor’s son her guardian allowing him to make all necessary decisions regarding visa related matters that would ordinarily be made by the sponsor and financial manager of her estate. Evidence has been provided of the financial circumstances of the sponsor and the assistance that the sponsor’s son would give to the sponsor to ensure her compliance with the sponsorship undertakings. This includes providing adequate accommodation and the financial assistance required to meet the applicant’s reasonable living needs for up to two years from the date of the grant of the visa.
There is no information before the Tribunal which would indicate that the sponsorship given by the sponsor at the time of the application has been withdrawn. Although the sponsor suffers from dementia, the Tribunal accepts the evidence of Dr Tam that the sponsor has the mental capacity to give the sponsorship undertakings and that her son is her guardian and financial manager of her estate.
The Tribunal accepts the assessment for the CVAC found that the applicant suffered dementia affecting brain function giving her an incapacity rating of 30 for that aspect of her medical condition. This is not, however, an assessment as to whether the applicant has the mental capacity to give the sponsorship undertakings as required for the grant of the Carer visa. The Tribunal prefers the assessment from Dr Tam who assessed the sponsor in March 2021 and states the sponsor’s Alzheimer’s disease is currently medically stable and she was not assessed as not possessing the mental capacity to make decisions during her admission to Concord Hospital or at the Bupa medical examination and that just because a person has a diagnosis of dementia or Alzheimer’s disease it does not mean the person has lost all mental capacity. The assessment of Dr Ernest Tam is that the mental incapacity the sponsor suffers from does not impact her capacity to understand her responsibility of giving an undertaking to provide support and accommodation to the visa applicants. It does not affect her capacity to sign legal documents.
Evidence has been provided of the capacity of the sponsor to provide adequate accommodation and financial assistance to the applicants for the period of at least two years after the grant of the visa. The guardian of the sponsor has indicated he will be providing direct personal assistance on his own behalf to ensure the sponsor is able to meet those undertakings.
The Tribunal is satisfied that by giving the sponsorship undertaking, the sponsor, and her guardian if required, understand the nature of the undertakings being given. The Tribunal is satisfied the sponsor has the capacity to meet the sponsorship undertakings and there is no reason why the sponsorship should not be approved. There is nothing to indicate that the sponsorship provided at the time of the application has been withdrawn and the evidence provided is that the sponsor, either in person or given on her behalf by her guardian, continues with their sponsorship and maintains the undertakings given in association with that sponsorship.
Accordingly, the Tribunal approves the sponsorship and finds the applicant meets the criteria in cl.836.227.
Given the findings above, 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 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.
Russell Matheson
MemberATTACHMENT
Migration Regulations 1994
1.15AA Carer
1.15AA (1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:
(a)the applicant is a relative of the resident; and
(b)according to a certificate that meets the requirements of subregulation (2):
(i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and
(ii)the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and
(iii)the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and
(iv)because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and
(ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and
(d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and
(e)the assistance cannot reasonably be:
(i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii)obtained from welfare, hospital, nursing or community services in Australia; and
(f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.
(2)A certificate meets the requirements of this subregulation if:
(a)it is a certificate:
(i)in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and
(ii)signed by the medical adviser who carried it out; or
(b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.
(3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.
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