Zhou (Migration)

[2021] AATA 2836

Zhou (Migration) [2021] AATA 2836 (24 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jie Zhou

CASE NUMBER:  1823973

HOME AFFAIRS REFERENCE(S):          CLF2015/34816

MEMBER:Moira Brophy

DATE:24 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·cl 836.227 of Schedule 2 to the Regulations

Statement made on 24 June 2021 at 10:22am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsorship obligations not understood – dementia – resubmission of sponsorship form as per departmental request – delegate’s approach to sponsorship issue incorrect in law and fact – at time of application the giving of the undertaking is all that is required – medical reports confirming sponsor has mental capacity to understand obligations – sponsorship still in force and approved at time of decision – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 5CB, 65, 360

Migration Regulations 1994, rr 1.03, 1.15A, 1.20; Schedule 2, cls 836.227, 836.213

CASES
Babar v Minister v Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38

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 17 August 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 11 June 2015. 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 (Cth) (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 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 visa on the basis that cl 836.227 was not met because the delegate was not satisfied that at the time of her decision, the sponsor understood the sponsorship obligations she was agreeing to provide.

4. In reaching a 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 materials before it pursuant to s 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the 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.

   Are the sponsorship requirements met?

7. 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 reg 1.03 of the Regulations. ‘Spouse’ is defined in reg 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).

8. The delegate found, on the evidence provided in support of the carer visa application, that the sponsor did have capacity to understand her sponsorship obligations at time of application. The delegate was satisfied cl 836.213 of the Regulations was met and on 12 April 2016 the Department assessed the applicant as meeting the core criteria for the carer visa. Her application was allocated a queue date and placed in a global queue of Other Family visa applications. Upon release from the queue on 7 April 2018 the applicant was requested by the Department to provide a new sponsorship form (Form 40) to facilitate consideration as to whether the sponsorship remained in force. The Department’s letter highlighted the fact that the medical evidence indicated the sponsor had dementia and because of this the delegate considered the sponsor may no longer understand her sponsorship obligations. Additional information was provided, including a new Form 40 signed by the sponsor, a report dated 29 April 2018 from Dr Liu, Geriatrician and Consultant Physician and a new CVAC dated 7 June 2018. The delegate opined the medical evidence provided was contradictory in content and as such found she was not satisfied the sponsor understood the sponsorship obligations at the time of signing the new Form 40 on 16 April 2018. On that basis the delegate was not satisfied the sponsorship was in effect at time of decision.

9. With respect, the Tribunal considers the delegate’s approach to the sponsorship issue to be incorrect in law and fact.

10. 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.

11. The evidence in the present case is that the applicant, Ms Jie Zhou was sponsored by Mrs Mei Juan Zhu, who is the Australian relative that the applicant seeks to care for. A Form 40 Sponsorship for Migration to Australia was signed by Mrs Zhu on 10 June 2015 and submitted with the application. The Tribunal is satisfied that Mrs Zhu has turned 18, having been born in 1934, and that she is a settled Australian citizen and is usually resident in Australia.

12. In assessing whether the time of decision criteria are met, the Tribunal adopts the decision in Huang case number 1815336 (differently constituted) where the following was stated:

13. Regulation 1.20 defines a sponsor as ‘a person who undertakes the obligations stated in sub regulation (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’.

14. 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.

15. 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. Although this judgment concerned sponsorship for a partner visa, the Tribunal observes that carer visas feature the same sponsorship framework.

16. The Tribunal has also considered the judgment in Lo v MICMSMA, 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 judgment 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.

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 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 judgment 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 that Babar makes clear no issue arises as to the sponsor’s capacity to fulfil the undertakings.

19. Therefore, on the authority of the Full Federal Court in Babar, the Tribunal finds, on the evidence of the signed Form 40 Sponsorship dated 10 June 2015, 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 2018 on the available evidence.

21. The Tribunal starts from the established common law position of a presumption of capacity. 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. 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.

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. Following an invitation to comment on this information by the Department, the applicant provided evidence specifically addressing the issue of the sponsor’s mental capacity to give the undertaking. This included a letter from Dr Tam, the sponsor’s treating geriatrician, dated 25 January 2016 which refers to reviewing the sponsorship obligation with her (on that day) and provides his professional opinion that the sponsor had, although suffering from dementia, at the time of application, mental capacity to understand the obligations for which she was providing the undertaking to sponsor the applicant. The applicant also provided to the Department a report dated 29 April 2018 from Dr Xinsheng Liu, a geriatrician and consultant physician in which it was stated ‘based on cognitive assessment, she still has the capacity appointing Power of Attorney for her but has no capacity making her own decision for the lifestyle or managing her financial affairs’. A further report from Dr Tam dated 14 July 2018 stated ‘I have reviewed the sponsor obligations with Ms Zhu today. Based on all my assessments on Ms Zhu, I consider Ms Zhu has demonstrated that she has the mental capacity and could understand the obligations of sponsoring her granddaughter, Ms Jie Zhou as her carer. I am satisfied that Ms Zhu understands her obligations and undertaking at the time of this carer Visa application being lodged.’

24. The question of capacity is decision and situation specific and depends on the decision or situation under consideration. A person with a disability or medical impairment can still have decision-making capacity.

25. For example, a diagnosis of Alzheimer’s disease or dementia of itself does not mean a person lacks mental capacity for everything. The 2016 report of Dr Tam made following an assessment conducted to specifically assess this question (as at the date of the report) gave a professional opinion that she had such capacity. The report of Dr Chan in 2018, who also specifically assessed the sponsor for this purpose, concurred with this opinion. The Tribunal observes that for both reports the sponsor was assessed substantially after the time the undertaking was given, and in the context that she suffers degenerative conditions. Nevertheless, Dr Tam her treating doctor saw fit to conclude that she had mental capacity at time of application. The evidence of the medical professionals was provided after they conducted relevant cognitive assessments. Mindful of the complexity involved in assessing capacity in the context of degenerative conditions, where there is evidence of professional assessment having been carried out, and in the absence of any competing contradictory professional opinion equally based on such an assessment carried out for this purpose, the Tribunal considers it prudent to accept their professional judgement. Therefore, on the evidence of Dr Tam, the Tribunal is satisfied that the sponsor had mental capacity when signing the sponsorship form in 2015 and understood the undertaking she gave.

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

    Sponsorship is still in force and approved at time of decision

27. There is no evidence before the Tribunal that the sponsorship given by the sponsor in 2016 has been withdrawn. On that basis the Tribunal finds the sponsorship continues to be in force at time of decision.

28. Having accepted that the sponsor gave an undertaking, which is still in force, 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. 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 judgment 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].

29. In the absence of any prescribed matters to consider or lawful policy guidance, it appears to the Tribunal that there are two possible ways to approach this issue. The first, given that the sponsorship is still in force, and the Regulations prescribe no specific limitations, is that the sponsorship must be approved. That is, in the absence of anything in the Regulations to prescribe limitations on sponsorship, the sponsorship if still in force, must be approved. This is consistent with the regulatory scheme, in that the undertakings are not in fact enforceable and therefore, there is no reason why they should not be approved.

30. Alternatively, as alluded to in Babar, the Tribunal has a discretion to exercise, and in doing so, can consider relevant matters. Matters the Tribunal considers to be relevant in the present case include the following: the Tribunal is satisfied the evidence indicates the sponsor is fully aware of, supports and understands that she has sponsored the visa applicant for the purposes of a carer visa. The evidence contained in the Department file supports that the visa applicant is and has been her main carer since the application was lodged, noting that the Tribunal has not, in this review, specifically assessed the visa applicant against these criteria.

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

32. The Tribunal notes that Departmental file notes indicate the visa applicant was found to meet the substantive criteria as a carer in reg 1.15AA following assessment on 12 April 2016.

33. 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

34. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

    ·cl 836.227 of Schedule 2 to the Regulations

    Moira Brophy
    Member