1908430 (Migration)

This matter concerned an appeal by a visa applicant against a decision to refuse a Subclass 836 (Carer) visa. The applicant's father, an Australian citizen, was the sponsor. The core of the dispute revolved around the sponsor's capacity to understand and fulfil his sponsorship obligations, particularly in light of his diagnosed dementia, including Alzheimer's and vascular dementia. The Tribunal was required to determine whether the sponsorship requirements, as stipulated in clauses 836.213 and 836.227 of the Migration Regulations 1994, were met.

The legal issues before the Tribunal were twofold: first, whether the sponsor met the criteria under clause 836.213 at the time of the visa application, and second, whether the sponsorship was approved and remained in force at the time of the decision, as required by clause 836.227. The Tribunal considered the Full Federal Court's decision in *Babar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs*, which held that for the purposes of clause 836.213, the giving of the undertaking simpliciter is sufficient, and no assessment of the sponsor's capacity to fulfil the undertaking is required at the time of application. The Tribunal also considered *Lo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs*, which affirmed that the sponsor must be identified at the time of application. However, the Tribunal viewed the observations in *Lo* regarding the sponsor's mental capacity as obiter dicta, particularly in light of the *Babar* decision.

The Tribunal found that, based on the signed sponsorship form dated 15 December 2016, the sponsor met the requirements of clause 836.213, following the authority of *Babar*. However, the delegate had refused to approve the sponsorship under clause 836.227 due to concerns about the sponsor's mental capacity to understand his obligations and the lack of any other person with legal authority to make decisions on his behalf. The Tribunal noted that the assessment of mental capacity is subjective and depends on the specific decision being made, referencing guidance from the Law Society of NSW and case law such as *Gibbons v Wright*. Given the complexity of assessing mental capacity in this context and the differing judicial considerations, the Tribunal concluded that the matter should be remitted for reconsideration.