1833418 (Migration)

The Administrative Appeals Tribunal considered an application for Other Family (Residence) (Class BU) visas, specifically a Subclass 836 Carer visa. The applicants were seeking review of a delegate's decision to refuse their visa applications. The primary issue before the Tribunal was whether the sponsorship requirement, as stipulated in clause 836.227 of the Migration Regulations 1994, had been met. This clause requires that the sponsorship be approved by the Minister and remain in force at the time of the decision.

The Tribunal was required to determine if the sponsorship, initially provided by the first-named applicant's stepfather, Mr. [A], was still in force. Mr. [A] had formally withdrawn his sponsorship by providing letters to the Tribunal stating his intention to cancel the sponsorship paperwork. He cited the first-named applicant's alleged failure to fulfil her carer obligations and his improved health as reasons for his decision. The Tribunal also had to consider whether it had complied with its obligations under section 359AA of the Migration Act 1958 in presenting this adverse information to the applicants.

The Tribunal found that Mr. [A]'s letters clearly indicated a withdrawal of sponsorship, meaning the sponsorship was no longer in force at the time of the decision. Despite acknowledging minor errors in its communication of the adverse information under section 359AA, the Tribunal concluded that it had substantially complied with its obligations by conveying the gist of the information. The first-named applicant provided oral evidence detailing alleged coercion and threats by Mr. [A] to withdraw his sponsorship, including demands for a personal relationship and threats to send her and the secondary applicant back to the Philippines. The Tribunal found this evidence compelling, noting the applicant's distress and that of her mother.

Ultimately, the Tribunal affirmed the delegate's decision to refuse the visa applications. However, the Tribunal considered the circumstances, including the alleged family violence and the applicants' inability to meet the requirements for an alternative visa (Subclass 835), to be exceptional. Consequently, the Tribunal decided to refer the matter to the Minister for consideration of intervention under section 351 of the Migration Act 1958.