Skea (Migration)

The Administrative Appeals Tribunal considered an appeal by the applicant, Mr Skea, against a decision by a delegate of the Minister to refuse his application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The delegate had concluded that the applicant's father, the sponsor, was no longer providing ongoing sponsorship, based on statements made by the applicant in his bridging visa application concerning his father's financial support.

The primary legal issue before the Tribunal was whether the applicant's sponsorship for the Subclass 835 visa remained in force, as required by clause 835.227 of the Migration Regulations. This required the Tribunal to determine if the delegate had erred in concluding that the sponsorship had ceased based on the applicant's bridging visa application statements, and to consider the evidence presented by the applicant and sponsor to the Tribunal.

The Tribunal found that the delegate had erred by relying on the applicant's bridging visa application statements without affording the applicant natural justice, meaning he was not given an opportunity to respond to the concerns raised. The Tribunal was satisfied, on the unequivocal evidence of the sponsor, including a statutory declaration and a newly signed Form 40, that the sponsorship undertaking remained in force. The Tribunal noted that the sponsor's obligation to support the applicant only arises upon the grant of the visa and to the extent necessary, and that the applicant's ability to work on his bridging visa indicated he would not require financial support at the time of visa grant.

Consequently, the Tribunal remitted the application for the Subclass 835 visa to the Minister for reconsideration, with a direction that the applicant met the sponsorship criteria under clauses 835.213 and 835.227 of Schedule 2 to the Regulations.