Skea (Migration) - [2024] AATA 2793

Skea (Migration) [2024] AATA 2793 (26 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sean Patrick Skea
REPRESENTATIVE:  Mr Cedwynn Toweel
CASE NUMBER:  2006184
HOME AFFAIRS REFERENCE(S):          CLF2019/105685
MEMBER:Meena Sripathy
DATE:26 July 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:
·cl.835.213 of Schedule 2 to the Regulations; and
·cl 835.227 of Schedule 2 to the Regulations.

Statement made on 26 July 2024 at 11:39am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – remaining relative of an Australian relative – sponsorship not demonstrated – applicant’s request for work rights – sponsorship not withdrawn – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 836.213, 835.227; rr 1.03, 1.20
CASES
Babar v Minister v Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 March 2020 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 17 December 2019. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 835 visa which are set out in Part 835 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 835.227.
The delegate refused to grant the visa on the basis that cl 835.227 was not met because the delegate concluded, based on information submitted in the context of the applicant’s request for a bridging visa without work restrictions, it was not demonstrated the applicant continued to be sponsored for this application and therefore at time of decision cl.835.227 was not met.
On 25 July 2024, in response to a request for submissions from the Tribunal, the applicant provided submissions and Statutory Declarations from the applicant and his father, the sponsor.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it pursuant to s 360(2)(a) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the applicant is the remaining relative of Mark Patrick Skea, who the applicant claims is their Australian relative. For the purposes of this application, ‘Australian relative’ means a ‘relative’ of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: reg 1.03. ‘Relative’ is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).
The Tribunal accepts that Mark Patrick Skea is the applicant’s father and an Australian permanent resident at time of application (noting also that he is now a citizen, at time of decision) and therefore is an Australian relative for these purposes.
Are the sponsorship requirements met?
Clause 835.213 requires that at the time of application the applicant is sponsored by the ‘settled’ Australian relative, or the spouse or where relevant, the de facto partner, of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, that person must cohabit with the Australian relative and must also be a settled Australian citizen, permanent resident or eligible New Zealand citizen.
At the time of decision, the sponsorship must be in force, although the sponsor need not be the same sponsor as at the time of application, provided he or she meets the requirements above: cl 835.227.
As acknowledged by the delegate in the decision, at the time of lodgement of the application, the applicant provided a completed Form 40 (Sponsorship for Migration to Australia) signed by Mark Patrick Skea on 10 December 2019, who is the applicant’s father, and was at that time an Australian permanent resident, having been granted a permanent visa on 17 September 2019. There is no dispute that the sponsor was usually resident in Australia at that time.
Therefore at the time of application the applicant was sponsored in accordance with the regulations and satisfies cl 835.213.
Time of decision - sponsorship, of the kind mentioned in cl 835.213, approved by the Minister, continues to be in force
Clause 835.227 requires the sponsorship, approved by the Minister (or Tribunal on review) to be in force. The delegate in this case concluded, on the basis of information provided in the context of the applicant’s request for work rights on his bridging visa, that the sponsorship by his father was no longer ongoing and refused the application on that basis. This information was statements made on the applicant’s behalf in his application for a bridging visa without work condition, that his father, having supported him since his arrival in Australia in November 2019, is not prepared to financially support him given his fitness to work. In his Bridging Visa application form the applicant referred to it being ‘unethical’ to expect his father to support him for the 20 or 30 years and ‘he refuses to’. Relying on these statements, and without putting the concerns it raised to the applicant for comment or response, the delegate concluded the applicant did not continue to be ‘sponsored’ for the substantive visa application.
Evidence before the Tribunal
Before the Tribunal, the applicant confirms he continues to be sponsored by the same sponsor and disputes the delegate’s conclusion that his father had withdrawn or ceased the sponsorship. In support of this a Statutory Declaration from the sponsor, Mark Patrick Skea dated 24 July 2024 has been provided, confirming that he did not at any time withdraw or cancel his sponsorship undertaking provided with the application. In his declaration, Mr Skea (senior) confirms that he has supported the applicant since his arrival in Australia and up until July 2023 when he was granted work rights on his bridging visa. To avoid any doubt, he reiterates his undertaking to sponsor the applicant and, to avoid any doubt, has signed a new Form 40 on 18 July 2024.
In their submissions to the Tribunal the representative argued the following in response to the delegate’s reasons for decision:
·The obligations of a sponsor, as contained in r.1.20, only arise on the grant of the visa, which on current processing times for the present application may not arise for 20 or 30 years, and also only arise “to the extent necessary”.
·The sponsor has no obligation to support the applicant now or for the foreseeable future, and when he does it is for two years upon grant of the visa which he has never denied or refused to do.
·There is no evidence that the sponsor ever withdrew his Form 40 sponsorship undertaking.
·Given the obligation is only to the extent necessary, the fact that the applicant had a job offer at the time (evidence of which was submitted) indicated that the applicant would not have required the sponsor’s support when the visa was granted.
·The delegate refused the applicant without affording the applicant natural justice, and without evidence of withdrawal of sponsorship.
The Tribunal has considered the evidence and submissions before it and is satisfied, on the unequivocal evidence of the sponsor, that the applicant continues to be sponsored by him at time of decision. The next issue arising is whether the sponsorship is approved.
As identified by the representative in the submissions, the obligations of a sponsor under the Migration Regulations are defined in r.1.20 of the Regulations as undertakings to support the visa applicant “to the extent necessary, financially and in relation to accommodation.” Nothing further is specified. The Full Federal Court in Babar v Minister v Immigration, Citizenship, Migrant Services and Multicultural Affairs described sponsorship approval as a discretion in respect of which there is no reference to content in the Regulations.[1]
[1] [2020] FCAFC 38 at [39]
Taking note from this judicial authority, that departmental policy as it currently stands is not properly directed to the exercise of the discretion in relation to approval of sponsorship, the Tribunal takes the following into account in assessing whether to approve the sponsorship in this case: it accepts the sponsor provided accommodation for the applicant from his arrival to Australia in November 2019 for a period of two years, following which the applicant rented a room from one of the sponsor’s other sons, and was financially supported by the sponsor until he obtained work rights in July 2023. The sponsor has declared he is employed as an Insurance Broker and has been employed with the same employer since October 2015. To avoid any doubt of his continuing willingness to sponsor the applicant, he has signed and completed a new Form 40 on 18 July 2024. Having regard to the ongoing family relationship and substantial support provided to the applicant to date, and the continuous sponsorship since the application was made, absence of any prescribed limitations on sponsorship, and the matters considered above, there is no basis for the Tribunal to not approve it.
For these reasons, the Tribunal approves the sponsorship.
As the sponsorship is approved and in force, the applicant satisfies cl 835.227.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 835 visa.
DECISION
The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:
·cl.835.213 of Schedule 2 to the Regulations; and
·cl 835.227 of Schedule 2 to the Regulations.
Meena Sripathy
Senior Member