TAMAPUA (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Subclass 836 (Carer) visa application. The applicant sought review of a delegate's decision that found the sponsorship requirements for the visa were not met. The core of the dispute revolved around the assessment of the sponsor's capacity to fulfil their sponsorship obligations.

The Tribunal was required to determine whether the sponsorship requirements under clause 836.213 and clause 837.227 of the Migration Regulations 1994 were satisfied. Specifically, the Tribunal had to consider whether the sponsor, an Australian relative, had met the criteria for sponsorship at the time of the application and whether that sponsorship remained in force and approved at the time of the decision.

The Tribunal found that the delegate's approach to assessing the sponsor's capacity was incorrect. Applying the Full Federal Court's decision in *Babar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs*, the Tribunal held that for the purposes of sponsorship, the giving of the undertaking simpliciter is sufficient, and there is no requirement to assess the sponsor's capacity to fulfil that undertaking at the time of application. The Tribunal was satisfied that the sponsor, Ms Linda Mataale Ahmad, had provided the necessary undertaking and met the definition of a sponsor.

Consequently, the Tribunal remitted the applications for the Other Family (Residence) (Class BU) visas for reconsideration by the Minister, with a direction that the criteria under cl.836.213 and cl.836.227 of Schedule 2 to the Regulations were met. The Minister was to consider the remaining criteria for the Subclass 836 visa.