BONITO (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to have his application considered despite the death of his Australian relative sponsor, his mother, Mrs Marciana Bonito. The applicant contended that his sisters and other relatives in Australia would support him and guarantee he would not be a burden on the Australian Government. The decision was made by David Barker, a member of the Tribunal.

The primary legal issue before the Tribunal was whether the sponsorship requirement, as stipulated in clause 836.213 and clause 836.227 of the Migration Regulations 1994, had been met and remained in force at the time of the decision. Clause 836.213 requires the applicant to be sponsored by an eligible Australian relative at the time of application, while clause 836.227 mandates that this sponsorship must have been approved by the Minister and be still in force at the time of the decision. The Tribunal also considered whether the applicant met the criteria for a Subclass 838 (Aged Dependent Relative) visa.

The Tribunal acknowledged the applicant's submission that his mother, the sponsor, had passed away on 29 September 2017, as evidenced by a death certificate. The Tribunal found that, as the sponsor was deceased, the sponsorship was no longer in force. Consequently, the applicant did not satisfy the requirement under clause 836.227 that the sponsorship be in force at the time of the decision. Regarding the Subclass 838 visa, the Tribunal found the applicant was not old enough to be granted an age pension under the Social Security Act 1991, and therefore did not meet the definition of an 'aged dependent relative'.

For these reasons, the Tribunal affirmed the decision not to grant the applicant the Subclass 836 visa, and also found that the applicant did not meet the criteria for the Subclass 838 visa.