Freitas Romero (Migration)

This matter concerned an application for Other Family (Residence) (Class BU) visas, specifically Subclass 836 (Carer) visas, by the applicants, who were sponsored by Lita Merle Romero Ochoa. The central dispute arose when Ms. Ochoa withdrew her sponsorship of the applicants after they had applied for the visas. The applicants alleged that Ms. Ochoa had acted vengefully due to family violence and submitted that the Tribunal should consider this in their favour, drawing a parallel to spouse visa cases. The decision was made by Senior Member Ann Duffield of the Tribunal.

The primary legal issue before the Tribunal was whether the applicants met the requirements of clause 836.227 of the Migration Regulations 1994, specifically concerning the necessity of having an approved sponsorship that remained in force at the time of the decision. This involved interpreting the definition of "sponsorship" and whether the withdrawal of sponsorship by the sponsor, even in alleged circumstances of family violence, could be overlooked by the Tribunal. The Tribunal was also required to consider whether the applicants' claims of family violence and their submission that the Tribunal should grant the visas in a manner similar to spouse cases were legally relevant to the sponsorship requirement.

The Tribunal reasoned that clause 836.213 of the Regulations mandates that an applicant for a Subclass 836 visa must be sponsored by an Australian relative, or their spouse or de facto partner, and that this sponsorship must be approved and in force. The Tribunal noted that while the applicants were initially sponsored by Ms. Ochoa, she had formally withdrawn her sponsorship, and there was no evidence that it had been reinstated. The Tribunal explicitly stated that the reason for the withdrawal was not the issue, as a sponsor could withdraw without providing a reason. Crucially, the Tribunal found that it had no discretion to overlook the requirement for a current, approved sponsorship.

Consequently, the Tribunal concluded that the applicants did not meet the prescribed criteria for the Subclass 836 visa because the sponsorship requirement was not satisfied. The Tribunal affirmed the decision not to grant the applicants the visas.