MAI (Migration)

The Administrative Appeals Tribunal considered an application for an Other Family (Residence) (Class BU) Carer (Subclass 836) visa. The applicant, born in Vietnam in 1995, had her visa application refused by a delegate. The central issue before the Tribunal was whether the sponsorship requirements for the visa were met, specifically concerning the applicant's paternal grandmother, who acted as the sponsor.

The Tribunal was required to determine if the sponsor met the criteria outlined in clause 836.213 of the Regulations, which mandates sponsorship by an eligible Australian relative who is at least 18 years old. Additionally, the Tribunal had to consider clause 836.227, requiring that the sponsorship be approved by the Minister and remain in force. The delegate's initial refusal was based on doubts about the sponsor's capacity to understand her obligations and whether the sponsorship was approved and still in force.

In its reasoning, the Tribunal relied on the Full Federal Court's decision in *Babar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs* [2020] FCAFC 38. The Tribunal noted that *Babar* established that for the purpose of sponsorship undertakings, an assessment of the sponsor's capacity to fulfil the undertaking is not required; the act of giving the undertaking is sufficient. Applying this principle, the Tribunal found that the sponsor had provided the necessary sponsorship form and therefore met the requirements of clause 836.213 and clause 836.227.

Consequently, the Tribunal remitted the application for the Subclass 836 Carer visa for reconsideration. The remittal was with the direction that the visa applicant met the sponsorship criteria under both clause 836.213 and clause 836.227 of Schedule 2 to the Regulations, allowing for the assessment of the remaining visa criteria.