Toscano (Migration)

This matter concerned an application for review of a delegate's decision to refuse to grant Other Family (Residence) (Class BU) visas, specifically Subclass 836 (Carer visas), to Mr Daniele Toscano and Mrs Ana Filipa Cardoso Infante. The applicants had applied for the visas onshore, with Mr Toscano being sponsored by his Australian citizen father, Mr Girolamo Toscano. The delegate's refusal was based on the withdrawal of sponsorship by Mr Girolamo Toscano.

The primary legal issue before the Tribunal was whether the applicants continued to meet the sponsorship requirements for a Subclass 836 Carer visa at the time of the Tribunal's decision. Specifically, the Tribunal had to determine if the sponsorship, which was valid at the time of application, remained in force as required by clause 836.227 of Schedule 2 to the Migration Regulations 1994.

The Tribunal found that while the sponsorship requirements were met at the time of the visa application, as Mr Girolamo Toscano was an Australian citizen, the father of the applicant, and met the definition of an "Australian relative," the sponsorship had been formally withdrawn by Mr Girolamo Toscano on 13 May 2019. The Tribunal noted that the applicants had not contested this withdrawal, and there was no evidence that the sponsor had since agreed to resume sponsorship or that another Australian relative had agreed to sponsor the applications. Consequently, the Tribunal concluded that the sponsorship was not in force at the time of its decision, and therefore, clause 836.227 was not satisfied.

The Tribunal affirmed the delegate's decision to refuse the grant of the visas. The Tribunal also noted that, in any event, the applicants had departed Australia and were not present in the country when the visa might have been granted, which would have also prevented the grant of the visa under clause 836.411.