Hammoud (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The dispute centred on whether the applicant met the sponsorship requirements under clauses 836.213 and 836.227 of the Migration Regulations 1994. The applicant's sponsor was her Australian relative, Ms Fatme Nasrallah Hammoud, who had provided a sponsorship undertaking. However, concerns were raised by the Department regarding Ms Hammoud's mental capacity to understand her sponsorship obligations, stemming from a Carer Visa Assessment Certificate and GP letters indicating dementia and memory issues.

The Tribunal was required to determine if the sponsorship requirements were met at the time of application and if the sponsorship remained in force and approved at the time of the decision. Specifically, the Tribunal had to assess whether Ms Hammoud's sponsorship undertaking satisfied clause 836.213, which requires sponsorship by an Australian relative who is at least 18 years old, and whether the sponsorship was approved and still in force under clause 836.227. The Tribunal also had to consider the impact of recent judicial decisions on the assessment of a sponsor's capacity to fulfil their obligations.

The Tribunal's reasoning was significantly influenced by the Full Federal Court's decision in *Babar v Minister v Immigration, Citizenship, Migrant Services and Multicultural Affairs*, which established that for sponsorship purposes, the giving of the undertaking is sufficient, and an assessment of the sponsor's capacity to fulfil the undertaking is not required. Applying this principle, the Tribunal found that Ms Hammoud, having signed the sponsorship form, had provided the undertaking as required by clause 836.213. The Tribunal also considered *Lo v MICMSMA*, which affirmed that the sponsor must be identified at the time of application and that the sponsorship must be approved and remain in force at the time of decision. Despite the earlier concerns about Ms Hammoud's cognitive state, the Tribunal concluded that the sponsorship was in force and approved, and therefore the applicant met clauses 836.213 and 836.227.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the sponsorship criteria under clauses 836.213 and 836.227 were met. This meant that the Department was to proceed to consider the remaining criteria for the Subclass 836 visa.