Elias (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer visa), by Mr Elias, who claimed to be the carer of his mother, Ms Fakhr. The dispute arose because Ms Fakhr, the proposed sponsor, had passed away after the application was lodged but before a decision was made. The Tribunal was required to determine whether Mr Elias met the criteria for the visa, particularly the requirement that the sponsorship must be in force at the time of the decision.

The Tribunal considered clauses 836.212, 836.213, and 836.227 of the Migration Regulations 1994. While Mr Elias met the initial criteria of claiming to be a carer and being sponsored by his mother at the time of application, clause 836.227 stipulated that the sponsorship must still be in force at the time of the decision. Regulation 1.20(1) defines a sponsor as a person who undertakes certain obligations. As Ms Fakhr was deceased, she could no longer undertake these obligations, meaning the sponsorship was no longer in force. The Tribunal also considered applications for Subclass 835 (Remaining Relative) and Subclass 838 (Aged Dependent Relative) visas, finding that Mr Elias had not made a valid application for the former due to insufficient application fees, and did not meet the criteria for the latter as he was not dependent on his deceased mother.

The Tribunal applied the principle that a sponsorship must remain valid and operative at the time of decision, as established by the regulations. It relied on previous case law, including *Farook v MIBP* [2014] FCCA 1000, *Palanisamy v MIBP* [2013] FCCA 1779, and *Chaddha v MIMA* [2002] FCA 92, to confirm that where an applicant pays a lower fee for a visa subclass, it is clear they only applied for that specific subclass. Consequently, Mr Elias did not meet the requirements for the Subclass 836 visa due to the cessation of sponsorship, nor for the other subclasses considered.

The Tribunal affirmed the decisions not to grant Mr Elias the visas. However, acknowledging the strong compassionate circumstances, including that Mr Elias and his relatives were in Australia while no relatives remained in Lebanon, the Tribunal referred the matter for the Minister's consideration regarding potential intervention.