ZHANG (MIGRATION)

This matter concerned an appeal by the applicant, ZHANG, regarding a Subclass 836 (Carer) visa. The dispute arose when the Department of Home Affairs (the delegate) refused to approve the sponsorship, which was a requirement for the visa. The sponsor was the applicant's mother, an Australian citizen, who had been diagnosed with dementia with an extreme decline in cognitive function. The delegate's decision was based on the sponsor's perceived inability to understand her sponsorship obligations and the lack of a legal authority to make decisions on her behalf. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the sponsorship requirements were met at the time of the application and at the time of the decision.

The Tribunal considered two key legal issues. Firstly, whether the sponsor met the requirements of clause 836.213 of the Migration Regulations 1994 at the time of the visa application, which mandates sponsorship by a settled Australian relative. Secondly, the Tribunal had to assess whether the sponsorship was approved and still in force at the time of the decision, as required by clause 836.227. This second issue involved determining whether the sponsor's diagnosed dementia and the appointment of a guardian and financial manager impacted her capacity to provide sponsorship.

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*, which established that for the purpose of sponsorship criteria, the giving of the undertaking simpliciter at the time of application is sufficient, and no assessment of the sponsor's capacity to fulfil the undertaking is required. The Tribunal found that the sponsor had provided the signed sponsorship form at the time of application, thus satisfying clause 836.213. Regarding clause 836.227, the Tribunal noted that while the sponsor had dementia, the legal principle is that a diagnosis of dementia does not automatically mean a person lacks all mental capacity. The assessment of mental capacity is decision-specific, and the fundamental issue is the ability to understand the general nature of what one is doing. The Tribunal concluded that the delegate had not adequately considered whether the sponsor understood the nature of her sponsorship obligations at the time she provided them, nor had it sufficiently explored whether her condition prevented her from understanding the undertaking.

Consequently, the Tribunal found that the delegate's decision was not based on sufficient evidence or legal reasoning. The Tribunal remitted the matter to the delegate for reconsideration, with directions to properly assess the sponsor's capacity at the time of the application and to determine if the sponsorship was still in force.