1913373 (Migration)

This matter concerned a review of the Minister's decision to refuse a Child (Migrant) (Class AH) visa application made by [Child 2] and [Child 1]. The applicants sought review of the delegate's decision of 12 April 2019, which refused to grant them a Subclass 101 (Child) visa. The core of the dispute revolved around the eligibility of Mr [A], the father of the applicants, to act as their sponsor, given his prior criminal convictions.

The primary legal issue before the Tribunal was whether Mr [A]'s sponsorship could be approved, notwithstanding his conviction for intentionally importing tier 2 goods, specifically child pornography, under s.233BAB of the *Customs Act 1901* (Cth). This conviction rendered him a sponsor convicted of a "registrable offence" as defined by regulation 1.20KB(13) of the *Migration Regulations 1994* (the Regulations). Regulation 1.20KB(3) generally mandates the refusal of sponsorship approval in such circumstances if the applicants are under 18, unless the conviction has been quashed or set aside. The Tribunal was required to determine if an exception under regulation 1.20KB(4) applied, which permits sponsorship approval if the sponsor completed their sentence more than five years prior to the application, has not re-offended, and there are compelling circumstances affecting the sponsor or the applicant.

The Tribunal reasoned that while Mr [A] had been convicted of a registrable offence and the children were under 18, the exception in regulation 1.20KB(4) could be applied. It found that Mr [A] had completed his sentence more than five years before the application date and had not re-offended. Crucially, the Tribunal determined that compelling circumstances existed, specifically the best interests of the children, which included the desire to keep the siblings together and their established life in Australia with their parents. Consequently, the Tribunal approved the sponsorship under regulation 1.20KB(4).

The Tribunal remitted the application for a Child (Migrant) (Class AH) visa for reconsideration by the Minister, with the direction that the applicants met the criteria for a Subclass 101 (Child) visa, specifically clause 101.222 of Schedule 2 to the Regulations, due to the approved sponsorship.