Garnett (Migration)

[2023] AATA 802

Garnett (Migration) [2023] AATA 802 (4 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sarah May Garnett

VISA APPLICANT:  Mr John Samuel Stady

REPRESENTATIVE:  Mr John Benjamin Maurice Vevers (MARN: 1067816)

CASE NUMBER:  2203582

HOME AFFAIRS REFERENCE(S):          BCC2020/2423092

MEMBER:Maxina Martellotta

DATE:4 January 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Contributory Parent (Migrant) (class CA) Contributory Parent (subclass 143) visa.

Statement made on 04 January 2023 at 3:28pm

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) – Subclass 143 (Contributory Parent) – sponsorship requirements – biological father of an Australian child – best interests of the child – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 1.11; Schedule 2, cl 143.212

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 Home Affairs on 22 February 2022 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) Subclass 143 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 2 October 2020. The delegate refused to grant the visa on the basis criteria required to be met at the time of application (reg. 143.21) is not satisfied. This is because the delegate concluded that the sponsorship criteria in regulations 143.212 and 143.214 are not satisfied.

3. On 22 June 2022[1]  the review applicant’s representative advised the Tribunal their client requested the matter be dealt with on the papers and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.[2] This includes information contained in the Department file as well as documents and written submissions provided to the Tribunal by the representative.

   [1] This was reaffirmed by their legal representative in correspondence dated 27 July 2022 and 6 October 2022.

   [2] Subparagraphs 360(2)(b) and 360)(3) of the Act.

4. The review applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The specific issue in the present case is whether the visa applicant is sponsored in accordance with subclause 143.212(3) of the regulations.

   Background

7. The review applicant concedes that they do not meet the sponsorship requirements. According to the evidence provided in support of the visa application and in materials provided to the Tribunal:

   a)The visa applicant is a citizen of the United States of America, Canada and the United Kingdom.

   b)His is the biological father of an Australian child born in September 2016.

   c)The biological mother of the child is an Australian citizen.

   d)The mother and child reside in Australia.

   e)The visa applicant and the mother were formerly married. They were divorced in October 2019.

   f)The visa applicant’s application is sponsored by the review applicant who is a family friend.

   Criteria to be satisfied

8. The sponsorship criteria require that the visa applicant (the parent) is sponsored by a settled Australian citizen, permanent resident or eligible New Zealand citizen who has turned 18 years.  Where the child has not turned 18 years of age (as in this case), the sponsor may be either:

   ·    the child’s cohabitating spouse,

   ·    a relative or guardian of the child,

   ·     if the child has a spouse who has not turned 18 years, a person who is a relative or guardian of the spouse, or

   ·    a community organisation.

9. The above clause does not apply if the visa applicant meets the requirements of subclause143.214(2). This refers to applicants who on a certain date held a subclass 405 (investor retirement) visa which is not the case in this matter.

10. As noted, the review applicant concedes and the tribunal is satisfied and finds, on the provided evidence, that the review applicant is neither the relative, guardian or cohabitating spouse of the child nor are they a community organisation. This means that the criteria required to be met at the time of application (reg.143.21) cannot be satisfied and for this reason the decision under review is affirmed.

    Request for Ministerial intervention

11. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

12. As noted in the background to this matter, the visa applicant is the biological father of an Australian child. According to materials provided to the Tribunal, the visa applicant submits that:

    a)    Post separation he has attempted to maintain contact and connection with his child. This has been effected through electronic communications and visits to Australia. His most recent visit to Australia to visit his child was in September 2022.

    b)   There has been a change in attitude by the mother of the child which has impacted upon the quality of that contact.

    c)   He has engaged legal advice and assistance to negotiate contact arrangements with his ex-wife.

    d)   The mother of the child has refused to sponsor the visa applicant in the visa which would allow him to maintain a greater level of involvement in his child’s life.

    e)   He has sought the assistance of community organisations in the sponsorship of his visa application without success.

    f)    He pays monthly child support through a private arrangement.

    g)   Its in the best interests of the child that he has the opportunity to develop a meaningful relationship with his father (the visa applicant).

13. The Tribunal was provided with copy of correspondence sent by the visa applicants solicitors to his ex-wife seeking to come to an arrangement to resolve these issues.

14. The Tribunal notes that a fundamental aspect in the visa applicant’s submissions is that it is in the best interests of the child (an Australian citizen) that he has an opportunity to develop and maintain a meaningful relationship with his father. In this regard the Tribunal also notes Australia is a signatory to the Convention of the Rights of the Child which specifies in Article 7 the right of a child as far as possible to know and be cared for by his or her parents.

15. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

16. The Tribunal affirms the decision not to grant the visa applicant a Contributory Parent (Migrant) (class CA) Contributory Parent (subclass 143) visa.

    Maxina Martellotta
    Member