2009842 (Migration)

This case concerned an application for an Other Family (Migrant) (Class BO) Carer (Subclass 116) visa. The applicant's visa was refused on 23 April 2020. The central issue before the Tribunal was whether the sponsorship requirements for the visa were met. The sponsor, an Australian citizen, had provided a sponsorship undertaking on 23 January 2015.

The legal issues before the court were whether the sponsorship requirements under clause 116.212 of Schedule 2 to the Migration Regulations 1994 were met at the time of application, and whether the sponsorship remained in force at the time of the decision under clause 116.222. Crucially, the Tribunal was required to consider whether the sponsor had the mental capacity to understand her obligations and undertakings as a sponsor, given her diagnosis of Alzheimer's type dementia and significant global impairment.

The Tribunal noted that the sponsor had been diagnosed with Alzheimer's type dementia, resulting in significant global impairment and a 30-point impairment rating for brain function. Medical reports indicated a deterioration in her cognitive abilities, affecting her memory and capacity to manage personal affairs. While the sponsor had provided a statutory declaration and a report from a medical practitioner, the Tribunal considered whether these adequately demonstrated her capacity to understand the sponsorship obligations, particularly in light of her non-English speaking background and the nature of her cognitive impairment. The Tribunal referred to the principle in *Babar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs* that the giving of an undertaking simpliciter is sufficient, and that the capacity to fulfil the undertaking is not typically assessed. However, the present case raised questions about the sponsor's capacity to *give* the undertaking in the first place.

The Tribunal concluded that the matter should be remitted for reconsideration. While satisfied that the sponsorship was in force at the time of application and decision, the Tribunal found that further consideration was needed regarding the sponsor's mental capacity to understand her sponsorship obligations and undertakings.