1901804 (Migration)

The Administrative Appeals Tribunal considered an application for an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer). The applicant sought review of a delegate's decision to refuse the visa, which was based on concerns about the sponsor's capacity to understand their sponsorship obligations. The primary issue was whether the applicant was sponsored by an eligible Australian relative at the time of application and continued to be sponsored at the time of the Tribunal's decision.

The Tribunal was required to determine if the sponsorship requirements under clause 836.213 and clause 836.227 of the Regulations were met. Specifically, the delegate had found that the sponsor, the applicant's sister, lacked the capacity to understand her sponsorship obligations, citing a medical report and a Carer Visa Assessment Certificate. The applicant's representative argued, relying on *Babar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs* [2020] FCAFC 38, that the mere giving of an undertaking was sufficient for sponsorship, without requiring an assessment of the sponsor's capacity.

The Tribunal acknowledged the ratio in *Babar*, which held that an assessment of a sponsor's capacity to fulfil undertakings was not required. However, the Tribunal distinguished the present case, finding that *Babar* concerned the capacity to *fulfil* undertakings, whereas the current matter involved the capacity to *understand* the undertakings. The Tribunal concluded that there was a significant difference between these two capacities. Despite this distinction, the Tribunal ultimately found that the applicant met the criteria for the visa.

The Tribunal affirmed the delegate's decision not to grant the visa.