Manzanares (Migration)

[2021] AATA 669

Manzanares (Migration) [2021] AATA 669 (9 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Axthel Kinxynn Manzanares

CASE NUMBER:  1825578

DIBP REFERENCE(S):  CLF2017/69484

MEMBER:P. Maishman

DATE:9 March 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for an Extended Eligibility (Temporary) (Class TK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 445 visa:

·cl.445.226 of Schedule 2 to the Regulations.

Statement made on 09 March 2021 at 12:38pm

CATCHWORDS

MIGRATION – Extended Eligibility (Temporary) (Class TK) – Subclass 445 (Dependant Child) – police checks for applicant’s mother and sponsor – certificates from Australia and relevant other countries provided to tribunal – no disclosable court outcomes – best interests of applicant – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)

Migration Regulations 1994 (Cth), Schedule 2, cl 445.226, Schedule 4, criterion 4018

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 applicant an Extended Eligibility (Temporary) (Class TK) Dependent Child (subclass 445) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 5 October 2017. The criteria for an Extended Eligibility (Temporary) (Class TK) visa are set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

3. The delegate refused to grant the visa on 15 August 2018 on the basis that the applicant did not meet cl.445.226 because the delegate was not satisfied public interest criteria 4018 is met.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal had before a copy of the Department’s file containing the visa application and documents received by the Department. The applicant is a minor born in May 2012. He is the son of Tara Cyril Manzanares (the visa holding parent). Richard Sultana is the sponsor.

7. The Tribunal received a copy of the delegate’s decision record with the application for review. The delegate was concerned the sponsor and the visa holding parent had not provided evidence of whether they had been charged with, or convicted of, a registrable offence. On that basis the delegate was not satisfied there was no compelling reason to believe the grant of the visa would not be in the best interests of the applicant.

8. The issue in this case is whether there is no compelling reason to believe the grant of the visa would not be in the best interests of the applicant.

   Legislation and policy.

9. Clause 445.226 says:

   If the applicant has not turned 18, public interest criteria (PIC) 4017 and 4018 are satisfied in relation to the applicant.

10. Public Interest Criteria 4018 requires:

    The Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.

    Does the applicant satisfies PIC 4017?

11. The Department’s file contains an assessment checklist. The delegate was satisfied Tara Manzanares had sole custody of the applicant and met PIC 4017.  

12. The Tribunal had regard to the applicant’s birth certificate held on the Department’s file. Tara Manzanares is disclosed has the applicant’s mother. The applicant’s father is not identified. The Department’s file contains a Travel Clearance Certificate for a Minor issued by the Department of Social Welfare and Development confirming there is no objection to the applicant travelling abroad.

13. The Tribunal is satisfied the law of the applicant’s home country permits the removal of the applicant from the country.

14. The applicant satisfies PIC 4017.

    Does the applicant satisfies PIC 4018?

15. The Department’s policy for assessing PIC 4018 is contained in PAM3: Div1.4 concerning the protection of children. The policy requires sponsors, and partners of sponsors, of an applicant for a visa who is under 18 years old to provide an Australian National Police Check if they have been in Australia for a total of 12 months or more since turning 16 and a police check from each country in which they have spent a total of 12 months or more in the last 10 years since turning 16.

16. The Tribunal had regard to Part P - Details of Sponsor of the visa application. Mr Richard Sultana is identified as the sponsor and that item 66 identifies he lived in the Philippines from January 85 to August 2013. The Tribunal observes Part O – Details of child’s parent of the visa application records the applicant’s mother, Tara Manzanares, was born in January 1985 and arrived in Australia on 15 August 2014.

17. Movement records held by the Department shown Tara Manzanares first entered Australia in August 2013 for a short visit and re-entered Australia on 25 February 2014. According to the Department’s records Tara Manzanares has not departed Australia (as at 28 January 2021).

18. Movement records held by the Department show Richard Sultana in the 10 years prior to the visa application was outside Australia from 20 April 2009 until 23 November 2012. Since November 2012 Mr Sultana has been offshore for a total of around two months.

19. It is apparent to the Tribunal the details at item 66 of the visa application have been recorded in error and are relevant to the applicant’s mother, Tara Manzanares, and not the sponsor Richard Sultana.

20. The Tribunal received a statutory declaration from Richard Sultana dated 23 February 2021. Mr Sultana declares he lived in Malta between April 2009 and November 2012. Mr Sultana declares he has lived in Australia, in Melbourne, since 2012. The Tribunal accepts Mr Sultana’s statutory declaration outlines the correct information relevant to the countries in which he lived in the 10 years prior to the visa application.

21. The Tribunal received a police certificate from the Republic of the Philippines, Department of Justice, National Bureau of Investigation dated 3 February 2016. The certificate is noted as being issued for immigration requirements and notes there are no records on file.

22. The Tribunal received a National Police Clearance for Immigration/Citizenship from the Australian Federal Police dated 23 February 2021 certifying there are no disclosable court outcomes for Tara Manzanares.

23. The Tribunal is satisfied Tara Manzanares has provided the required police checks.

24. The Tribunal received a conduct certificate from the Criminal Records Office of the Malta Police dated 1 August 2019. The certificate certifies Richard Sultana is a person of good conduct, relative to the time he lived in Malta.

25. The Tribunal received a national police clearance for immigration/citizenship from the Australian Federal police dated 23 February 2021 certifying there are no disclosable court outcomes for Richard Sultana.

26. The Tribunal is satisfied the visa sponsor, Richard Sultana, and his partner, Tara Manzanares have not been convicted of, or have any unresolved charges for registrable offences in any country in which they resided in the period 10 years before the visa application.

27. The Tribunal finds there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.

28. The applicant satisfies PIC 4018.

    Conclusion

29. On the basis of the above findings, the applicant meets cl.445.226.

30. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

31. The Tribunal remits the application for an Extended Eligibility (Temporary) (Class TK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 445 visa:

    ·cl.445.226 of Schedule 2 to the Regulations.

    P. Maishman
    Member