1414495 (Migration)

[2016] AATA 3077

1414495 (Migration) [2016] AATA 3077 (14 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Bruce Graham Small

VISA APPLICANT:  Mr Raphael Martin Miranda

CASE NUMBER:  1414495

DIBP REFERENCE(S):  2013040756

MEMBER:Mary Urquhart

DATE:14 January 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the secondary visa applicant Raphael Martin Miranda meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl. 309.326 of Schedule 2 to the Regulations

Statement made on 14 January 2016 at 12:04pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. The secondary visa applicant Raphael Martin Miranda (the applicant) born 16/1/1998 applied for the visa on 4 April 2013 as a member of the family unit of his mother Gilda Miranda, the primary applicant, sponsored by Mr Bruce Graham Small, the review applicant.

   Background

3. The review applicant was the sponsor of the Prospective Marriage visa application and was, at the time of the application, the fiancée of the visa applicant’s mother. He has since married the visa applicant’s mother and she has now been granted subclass 820 Partner visa.

4. The applicant is a citizen of the Philippines and is currently 17 years old. He is the son of Gilda Miranda who was the primary applicant for a subclass 300 Prospective Marriage visa. The primary applicant was granted the Subclass 300 Prospective Marriage and has entered Australia. The applicant applied as a dependent child of the primary applicant.

5. In order to meet the criteria the applicant must be a member of the family unit of the primary applicant at the time of application and at the time of decision. (Cl. 309.326).

6. At the time of application the applicant was 15 years old. The primary applicant claimed that the applicant’s biological father was presumed dead since 1999 and she provided an affidavit of custody. The affidavit was not issued by a court.

7. Under the Family Code of the Philippines, if  a marriage has not  been annulled and there is a child  more than 7 years old, parental authority resides with the parent designated by the court (Article 213).The department requested a document to this effect from the primary applicant in relation to the applicant. No response was received.

8. The delegate refused to grant the visa on the basis that the visa applicant did not meet the criteria in cl.300.311 as the delegate was not satisfied that the visa applicant was a member of the family unit of the primary visa applicant. Specifically, the delegate was not satisfied that the visa applicant was dependent upon the primary visa applicant.

9. The review applicant appeared before the Tribunal on 9 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Gilda Miranda.  

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether custody of the applicant has been awarded to his mother, Mrs Gilda Miranda, the primary applicant.

12. The basis of the department’s decision in refusing the application was that the applicant was not dependent upon the family head as she did not have custodial rights in relation to him

13. The evidence now before the Tribunal is that on 30 October 2013 Mrs Gilda Miranda petitioned the Court in the Philippines seeking sole custody orders.

14. On 21 December 2015 the presiding Judge Maria Angelica T. Paras-Quiambao sitting in the Regional Trial Court Third Judicial Region, Branch 59, Angeles City, the Philippines granted the petition. In her decision she states

    “Judgement is hereby rendered declaring the presumptive death/absence of Juan V. Miranda Jr. pursuant to Article 41 of the family Code of the Philippines, subject to all restrictions and conditions provided therein.

    Petitioner Gilda P. Del Rosario-Miranda shall continue exercising parental authority and custody over minor Raphael Martin Del Rosario Miranda.

    This decision is immediately final and executor by the express provision of Article 247 of the Family Code of the Philippines.”

15. A copy of the decision is contained on the Tribunal file at folio 60.

16. The Tribunal is satisfied that at the time of application and at the time of decision the applicant relied was and is reliant upon the primary applicant to meet his basic needs.

17. For the reasons above, the Tribunal finds the visa applicant satisfies the criteria for the grant of the visa.

18. 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 300 visa.

    DECISION

19. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the secondary visa applicant Raphael Martin Miranda meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

    ·cl. 309.326 of Schedule 2 to the Regulations

    Mary Urquhart
    Member