Tindiani (Migration)

[2023] AATA 3232

Tindiani (Migration) [2023] AATA 3232 (26 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andrea Tindiani

REPRESENTATIVE:  Mr Joseph Italiano (MARN: 9902423)

CASE NUMBER:  2107621

HOME AFFAIRS REFERENCE(S):          BCC2021/1186723

MEMBER:Jason Pennell

DATE:26 July 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant to the applicant a subclass 808 Confirmatory (Residence) (class AK) visa.

Statement made on 26 July 2023 at 2.20pm

CATCHWORDS

MIGRATION – Confirmatory Residence (Class AK) visa – Subclass 808 (Confirmatory) – specified visa not held when application made – acknowledgement that criteria not met and request for referral for ministerial consideration – pathway to permanent residency through employment closed when applicant made redundant – difficulty of obtaining permanent residency by other paths – strong compassionate circumstances and best interests of Australian citizen child – relationship with and role in child’s life and support of child’s mother and family – referred for ministerial consideration – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351

Migration Regulations 1994 (Cth), Schedule 2, cls 808.211, 808.211A

CASE

Davis v MICMSMA; DCM20 v Secretary, DHA [2023] HCA 10

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 3 June 2021 to refuse to grant the visa applicant a Confirmatory (Residence) (Class AK) Subclass 808 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 2 June 2021. The applicant’s representative acknowledged at the outset that the applicant does not meet the criteria for the grant of the visa. The purpose of the application is to seek review of the refusal decision by the Tribunal, and then to request intervention by the Minister pursuant to s 351 of the Act. The delegate refused to grant the visa on the basis that the applicant did not meet cl 808.21 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).

3. The applicant appeared before the Tribunal on 20 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Emily Kay and Natalie Dowling.

4. The applicant was represented in relation to the review by his lawyer, Mr Joseph Italiano of Joseph Italiano & Associates.

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

SUPPORTING EVIDENCE

Applicant’s identity and migration history

1. The applicant is a 38-year-old citizen of Italy. He provided the Tribunal a copy of his passport biodata page.

2. The applicant was born in Verona, Italy, where he completed his school education. After finishing school, the applicant worked at the company Jacco Pellami for approximately one- to one-and-a-half years. He began working in a technical part of the business, then moved into sales. At approximately age 20, he took up employment at Stanley Black & Decker as a business developer fox six years. He quit this job in order to travel to Australia in 2012.

3. The applicant has a varied employment history in Australia. His jobs have included working on farms, as a gardener, in digital marketing, as a fuel attendant and other roles. He currently works two days a week as a hospitality even coordinator, events manager for a Hotel Frangos in Daylesford, Victoria. The applicant also works as a freelancer in digital media and as a men’s mental health coach at several organisations, including the Mankind project and Blase Grinner International.

4. The applicant undertook further study in Australia, he attained qualifications as a Certificate IV in Sport Coaching at the College of Sports and Fitness, Yoga Teacher Training at Byron Yoga Centre, a Diploma in Social Media Marketing, and Advanced Diploma in Marketing and Communication.

5. He first arrived on 20 July 2012 as the holder of a Working Holiday (subclass 417) visa. He has since departed and returned to Australia nine times. Before the expiry of his Working Holiday (subclass 417) visa, the applicant applied for a Temporary Work (Skilled) (subclass 457) visa. He was granted this visa on 21 June 2013 and held it until 1 June 2016, on which day he was granted another Working Holiday (subclass 417) visa. He held this visa until 15 March 2017, when he was granted a Student (subclass 500) visa. The applicant was granted a second Student (subclass 500) visa on 6 December 2017, and a third on 3 May 2019. The applicant has held a Bridging A (subclass 010) visa since 2 June 2021.

6. The applicant gave further details about his visa, employment and study history at the hearing, which is discussed in greater detail below.

7. The applicant provided the following documents in support of his application:

   ·Form 852[1]

   ·Form 956[2]

   ·Colour copy of the biodata page of the applicant’s passport[3]

   ·Letter from the applicant’s representative dated 31 May 2021.[4]

   [1]    Form 852, Dept file ADD20213099678, AAT file No 2107621, Doc ID 8532727.

   [2]    Form 956, Dept file ADD20213099678, AAT file No 2107621, Doc ID 8532727.

   [3]    Copy of applicant’s passport, Dept file ADD20213099678, AAT file No 2107621, Doc ID 8532727.

   [4]    Letter of Joseph Italiano, Dept file ADD20213099678, AAT file No 2107621, Doc ID 8532727.

8. The applicant provided the following documents in support of his application for review at the Tribunal:

   ·Colour copy of the biodata page of the applicant’s passport,[5]

   [5]    Copy of applicant’s passport, AAT file No 2107621, Doc ID 11109839.

   ·Copy of the applicant’s son’s birth certificate,[6]

   [6]    Copy of the applicant’s son’s birth certificate, AAT file No 2107621, Doc ID 11109839.

   ·Copy of the biodata page of the applicant’s son’s Australian passport.[7]

   [7]    Copy of the applicant’s son’s Australian passport, AAT file No 2107621, Doc ID 11109839.

   ·Copy of the applicant’s Victorian driver license[8]

   [8]    Copy of the applicant’s Victorian driver license, AAT file No 2107621, Doc ID 11109839.

   ·Document containing links to the applicant’s Change.org petition in support of the applicant staying in Australia, bearing over 13,000 signatures,[9]

   [9]    Document containing website links, AAT file No 2107621, Doc ID 11109839.

   ·Letter from the applicant dated 10 June 2023,[10]

   [10]   Letter from the applicant, AAT file No 2107621, Doc ID 11160453.

   ·Support letter from Ms Emily Kay, the mother of the applicant’s child, dated 9 June 2023[11]

   [11]   Support letter from Emily Kay, AAT file No 2107621, Doc ID 11160453.

   ·Support letter from Mr Grant Bell, Acting Campus Head at [Primary School], which the applicant’s son attends, dated 29 May 2023,[12]

   [12]   Support letter from Grant Bell, AAT file No 2107621, Doc ID 11160453.

   ·Support letter from Mr Anthony Kay, grandfather of the applicant’s child, dated 1 June 2023, [13]

   [13]   Support letter from Anthony Kay, AAT file No 2107621, Doc ID 11160453.

   ·Support letter from Mr Peter Lustig, former board member of the Mankind Project Australia in which the applicant participated, dated 1 June 2023, [14]

   [14]   Support letter from Peter Lustig, AAT file No 2107621, Doc ID 11160453.

   ·Support letter from Mr Blase Grinner, the applicant’s employer, dated 5 June 2023, [15]

   [15]   Support letter from Blase Grinner, AAT file No 2107621, Doc ID 11160453.

   ·Support letter from Dr Cameron McPherson, associate of the applicant through community work, dated 31 May 2023. [16]

   [16]  Support letter from Cameron McPherson, AAT file No 2107621, Doc ID 11160453.

   ·Support letter from Ms Cherie Bromley, 6 June 2023, Volunteer Coordinator at Byron Community Centre, [17]

   [17]   Support letter from Cherie Bromley, AAT file No 2107621, Doc ID 11160453.

   ·Support letter from Ms Natalie Dowling, housemate of the applicant, dated 1 June 2023, [18]

   [18]   Support letter from Natalie Dowling, AAT file No 2107621, Doc ID 11160453.

   ·Support letter from Mr Clayton Victor Kearney, associate of the applicant, dated 5 June 2023, [19]

   [19]   Support letter from Clayton Victor Kearney, AAT file No 2107621, Doc ID 11160453.

   ·Support letter from Mr David Andrews, associate of the applicant, dated 1 June 2023, [20]

   [20]   Support letter from David Andrews, AAT file No 2107621, Doc ID 11160453.

   ·Support letter from Mr Uri Brookman, Chair of the board of directors of the Mankind Project Australia in which the applicant participated, dated 2 June 2023, [21]

   [21]   Support letter from Uri Brookman, AAT file No 2107621, Doc ID 11160453.

   ·Support letter from Ms Tracey Hargreaves, former yoga teacher of the applicant, dated 1 June 2023, [22]

   [22]   Support letter from Tracey Hargreaves, AAT file No 2107621, Doc ID 11160453.

   ·Support letter from Mr Robert Clark, friend of the applicant, dated 6 June 2023, [23]

   [23]   Support letter from Robert Clark, AAT file No 2107621, Doc ID 11160453.

   ·Support letter from Mr Jason Kemp, former colleague of the applicant, dated 2 June 2023. [24]

   [24]   Support letter from Jason Kemp, AAT file No 2107621, Doc ID 11160453.

   ·Support letter form Mr Karl Just friend of the applicant, dated 31 May 2023, [25]

   ·Support letter form Mr Stewart Carter, friend of the applicant, dated 5 June 2023, [26]

   ·Support letter from Mr Matthew Wickens, associate of the applicant, dated 30 May 2023, [27]

   ·Support letter from Mr Matthew Perrett, associate of the applicant,[28]

   ·Support letter from Mr Michael Sanders-Hean, former housemate of the applicant, dated 2 June 2023, [29]

   ·Support letter from Ms Georgia Esposito, former teammate, dated 2 June 2023, [30]

   ·Support letter from Mr Benjamin Small, associate of the applicant, date 5 June 2023, [31]

   ·Support letter from Mr Damien Alig, associate of the applicant, dated 5 June 2023, [32]

   ·Support letter of Mr Matthew Chisholm, associate of the applicant, 31 May 2023, [33]

   ·Support letter of Mr Stephen Rufus, associate of the applicant, dated 2 June 2023.[34]

   [25]   Support letter form Karl Just, AAT file No 2107621, Doc ID 11160453.

   [26]   Support letter form Stewart Carter, AAT file No 2107621, Doc ID 11160453.

   [27]   Support letter from Matthew Wickens, AAT file No 2107621, Doc ID 11160453.

   [28]   Support letter from Matthew Perrett, AAT file No 2107621, Doc ID 11160453.

   [29]   Support letter from Michael Sanders-Hean, AAT file No 2107621, Doc ID 11160453.

   [30]   Support letter from Georgia Esposito, AAT file No 2107621, Doc ID 11160453.

   [31]   Support letter from Benjamin Small, AAT file No 2107621, Doc ID 11160453.

   [32]   Support letter from Damien Alig, AAT file No 2107621, Doc ID 11160453.

   [33]   Support letter of Matthew Chisholm, AAT file No 2107621, Doc ID 11160453.

   [34]   Support letter of Stephen Rufus, AAT file No 2107621, Doc ID 11160453.

9. The applicant’s statement reads as follows:[35]

   [35] Letter from the applicant, Tribunal case 2107621, Tribunal Doc ID 11160453.

   To whom it may concern,

   I am writing this letter to present compelling evidence regarding the likely outcomes and negative impacts that my son, Marley, will face if I am forced to leave Australia, resulting in an inability to fulfil my role as his father.

   I have been deeply committed and involved in Marley's life since his conception and always made sure I could be present for him emotionally, financially, physically and mentally.

   Marley has been the biggest gift I received in my adult life and sincerely I really struggle to entertain the idea there could be a future in which I am not a part of his everyday life, especially at this delicate age when Marley is entering the pre-teen phase of his life.

   Over the past ten years, I have sacrificed my career, relationships and lifestyle multiple times in order to secure my presence in his life and create a safe, supportive and healthy environment for Marley to grow into.

   I know first-hand the difficulties a young boy has to face due to the lack of presence of his father and the negative impact this has on one own's mental health and personal emotional development, unfortunately, this was my experience while growing up in Italy.

   Additionally, through community work and experiential education, I have gathered, in supporting other men and younger boys during modern days rites of passage and mental health support groups, I can easily recognise that many modern challenges men face in the Australian community are well-preventable, when we safeguard and foster a healthy bond and role modelling between a father and his child.

   Our father-son bond, it's the perfect testimony of the benefits a boy experience when his father is present, committed and available. The following points outline the potential consequences of this separation and the importance of maintaining my involvement in Marley's life:

   ·Emotional Impact: Marley has developed a strong emotional bond with me as his father, and any disruption to our relationship would have significant adverse effects on his emotional well-being. Research consistently demonstrates that a father's involvement contributes to a child's overall emotional stability and self-esteem. The absence of a father figure may lead to feelings of abandonment, insecurity, and a sense of loss in Marley's life.

   ·Psychosocial Development: My presence in Marley's life plays a crucial role in his psychosocial development. As his father, I provide him with guidance, support, and role modeling that are essential for his growth. Without my active involvement, Marley may experience challenges in developing a healthy sense of identity and may struggle with forming secure attachments with male figures. This could impact his ability to navigate relationships, establish boundaries, and develop a positive self-image.

   ·Educational Performance: Research consistently highlights the positive impact of a father's involvement on a child's educational outcomes. As Marley's father, I have played an active role in supporting his academic progress and motivating him to excel. The absence of my influence and support may hinder Marley's educational performance, potentially leading to decreased motivation, lower academic achievements, and limited access to the guidance necessary for his educational aspirations.

   ·Role Modelling: I have strived to be a positive male role model for Marley, teaching him values, providing guidance, and imparting life skills. Without my presence, Marley would miss out on valuable life lessons and a strong male role model to emulate. This absence may result in a lack of appropriate behaviour modelling, diminished self-confidence, and difficulties in developing important life skills such as assertiveness, resilience, and problem-solving

   In addition to that, based on scientifical evidence and social studies there are a multitude of negative psychological effects on a child when growing up without a father. Some of these include:

   ·The Child is More Likely to be Aggressive: Psychological studies show that children growing up without fathers are more likely to be aggressive and quick to anger—not just loud anger, but quiet anger, as well. Silent anger doesn't have a proper release valve, it just builds up like a growing monster, maturing right along with an individual. Anger, unfortunately, makes people think and act with stupidity, and at times hurt others, leading to trauma or internalised from the individual leading to disease.

   ·The Child is More Likely to Be Depressed: Boys growing up without a father are more susceptible to emotional distress. Depression is a terrible condition affecting many males in Australia, and when experienced it permeates every aspect of life. Depression unfortunately is also one of the main causes of suicide in males and its ripple effect impacts families and the wider community.

   ·The Child is More Likely to Be Incarcerated and Die by Suicide: Even when factors such as income, race, and parent involvement were held constant, fatherless children—especially boys—are twice as likely to wind up in prison later in life. That is an alarming statistic. They are more prone to aggression, more likely to drop out of high school, and more susceptible to negative influences. Given those tendencies, it's not hard to see how that can lead to higher levels of incarceration down the line. In addition, one of the most unnerving statistics is that nearly 65% of youth suicides are associated with fatherless homes. From my own experience, I know that children who grow up fatherless are at a much greater risk for depression and, unfortunately, suicide.

   ·The Child is More Likely to Use Drugs: Fatherless children are more likely to turn to drugs. A big percentage of Australian males battle several addictions, causing immense costs to government bodies to manage the issue as well as directly impacting their families and communities. The lack of presence of a healthy and dedicated role model can often lead to the bad influence of peers on the most vulnerable individuals.

   Given these potential outcomes and negative impacts, I implore you to consider the significant consequences of separating Marley from me, his father. I firmly believe that my continued involvement in Marley's life is essential for his overall well-being and healthy development.

   You have the power to change Marley's future and secure his father's presence. Please take into account the evidence presented in this letter when making any decisions regarding our situation. The preservation of Marley's relationship with his father is not only crucial for his emotional and psychological growth but also in his best interest for a well-rounded upbringing.

   My priority is to continue to do the best job I possibly can do, as a father to Marley, providing the guidance, love and dedication he deserves. I am also committed to continuing to offer my skills to the wider Australian community with my work to lower the male suicide rate and as a role model for Australian youth.

   Although Marley's mom and I separated long ago, we have found a loving, collaborative and respectful way to co-parent Marley and his siblings while nurturing the values of family and care for each other. She and her extended family fully support me in staying in Australia to be present for Marley.

10. The applicant gave evidence to the Tribunal at the hearing. He stated that was born in Verona on [Date], that he is an only child, and his mother and father remain in Italy. His father worked as a cleaner, and his mother worked in childcare. The applicant attended school in Verona and obtained a diploma qualification as a biological and chemistry technician. After completing school, the applicant worked at the company, Jacco Pellami, for approximately one-and-a-half to two years. He began working in a technical part of the business, then moved into sales. At around age 21, he took up employment at Stanley Black & Decker as a business developer fox six years. Following the end of a long-term relationship the applicant decided to move to Australia in 2012, at the age of 28.

11. The applicant first arrived in Sydney on 20 July 2012 and moved to Dubbo shortly after his arrival in Australia, where he began working as a fruit picker to fulfill the farm work required to extend his working holiday visa. After two months in that role, the applicant bought a vehicle and worked in Coffs Harbour picking blueberries. He then travelled to Byron Bay for a month’s holiday, and from there to Chiltern, Victoria where he worked at a fish farm and a brewery. The applicant then moved to Melbourne. He interviewed for a job at the Australian division of his previous employer in Italy, Stanley Black & Decker. The company hired the applicant and agreed to act as the sponsor for his permanent residency. The applicant relocated to Sydney in April 2013 as part of the condition of employment with Stanley Black & Decker. The applicant’s son was born on 28 June 2014.[36]

    [36] Applicant’s son’s passport bio date page, Tribunal case 2107621, Tribunal Doc ID 11109839.

1. The applicant’s evidence is that he worked for Stanley Black & Decker in Australia for three years. Two years into his employment with the company, he commenced applying for permanent residency. However, in around April or May of 2016, the company made his job redundant, and told the applicant that they would not sponsor him for permanent residency. After his redundancy, the applicant applied for and was granted successive student visas, which he held while completing the vocational courses described above.

2. As stated above, the applicant’s evidence is that he currently works as a hospitality events manager at Hotel Frangos in Daylesford, as a freelancer in media (developing websites, brand awareness strategies) and working in men’s mental health and wellbeing as a facilitator and coach. The applicant has been involved in the Mankind Project, Pathway Foundation, and Blase Grinner International, as a facilitator of group sessions in which he assists people with their mental health and life challenges.

3. The applicant described his relationship with his nine-year-old son, Marley. Marley attends Year [Number] at [Primary School]. The applicant’s evidence was that he and Marley do not live together during the week. The applicant lives in Muckleford, in the Bendigo region. Marley and his mother are based in Happy Valley, 20 minutes from Ballarat. They live with Marley’s mother’s children, Nyah, 12, and Raven, 6. The applicant picks up Marley every Friday afternoon from school and drops him back to school on Monday morning. Marley spends roughly half of his school holidays with the applicant, as well as public holidays. The applicant’s evidence is that he perceives his relationship with Marley as an opportunity ‘to do things right’. The applicant stated that it is very important for him to be there for Marley, as his own father was not very present during his childhood. His evidence was that he tries to teach Marley about managing his emotions, being a man of integrity, honouring and respecting himself and others, and healthy communication. The applicant is currently single. His evidence is that he tried his best to arrange his life, including his migration status, around being a present parent to Marley.

4. The Tribunal heard evidence from the mother of the applicant’s child, Ms Emily Kay. Ms Kay stated that she and the applicant are great friends, and that he provides her with emotional and parenting support. Her evidence was that Marley is very attached to his father, and that he tells her that he misses the applicant throughout the week. Ms Kay stated that the father of one of her daughters has been absent from her life for years, and that this has been a heavy burden for the family. She stated that she could not come close to replacing or compensating the loss of Marley’s father, should he have to depart Australia.

5. The Tribunal also heard evidence form Ms Natalie Dowling, who is the applicant’s housemate. Ms Dowling stated that she has seen the interactions between Marley and the applicant and attested to their close relationship.

6. The applicant’s representative gave evidence in relation to the applicant’s migration options and the policy rationales supporting a referral for Ministerial intervention. The representative noted that the applicant has no other migration pathway open to him, as he cannot use his qualifications to obtain a skilled visa. The representative submitted that the applicant’s child would suffer serious emotional hardship and told the Tribunal of other successful requests for Ministerial intervention in similar cases.

CONSIDERATION OF CLAIMS AND EVIDENCE

Application under review

1. The issue in the present case is whether the applicant satisfies cls 808.211 and 808.212 or cl 808.213, as required by cl 808.211A, which must be satisfied at the time that the visa application is made.

2. As noted above, the applicant concedes that he does not meet the criteria for the grant of the Confirmatory (Residence) Subclass 808 visa and has sought review by the Tribunal in order to seek the Minister’s intervention pursuant to s 351 of the Act.

3. The applicant held a Bridging A (subclass 010) visa on 2 June 2021 when he lodged the application currently under review. Accordingly, the applicant cannot satisfy cl 808.211, 808.212 or 808.213. In addition to other requirements, cl 808.211 requires the applicant to hold a Resident Return (Temporary) (Class TP) visa or an Emergency (Temporary) (Class TI) visa at the time of application. The applicant’s application is not covered by paragraph 1111(2A)(b), (c) or (d) of Schedule 1 to the Regulations, and so cl 808.213 does not apply. Accordingly, the Tribunal is satisfied that the applicant does not satisfy cl 808.211A, and so does not satisfy the criteria in cl 808.21, which are primary criteria for the grant of the visa.

4. Therefore, the Department’s decision must be affirmed.

DECISION

1. The Tribunal affirms the decision not to grant to the applicant a subclass 808 Confirmatory (Residence) (class AK) visa.

REQUEST FOR MINISTERIAL INTERVENTION

Referral for Ministerial Intervention

1. The Tribunal now considers the applicant’s request for the Tribunal to refer the matter to the Department for consideration by the Minister to exercise his discretion to substitute the Tribunal’s decision for one that is more favourable to the applicant, pursuant to s 351 of the Act. That section reads, relevantly:

   Section 351 Minister may substitute more favourable decision

   (1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

2. The Migration Policy and Operational Contents sets out the Minister’s guidelines for the exercise of this intervention power. These guidelines state that:[37]

   A review tribunal may refer a case to the Department if the member believes the issues involved fall within the unique or exceptional circumstances described in section 4 of these guidelines. The Department will assess the circumstances of the case and may refer the case to me where it meets my guidelines for referral. If the Department assesses that the case does not meet my guidelines for referral, the Department will finalise the case according to these guidelines.

   [37]   Migration Policy and Operational Contents, All stacks > 01/07/2023 > POLICY > MIGRATION ACT > Ministerial powers instructions > Minister's guidelines on ministerial powers (s351, s417 and s501J).

3. The guidelines set out instructions for Departmental officers regarding the cases that should be brought to the Minister’s attention. The Tribunal notes that the recent High Court decision of Davis v MICMSMA[38] held that all requests for Ministerial intervention must be considered by the Minister personally, and that, contrary to the terms of the policy, the Department may not finalise cases without referring them to the Minister. Notwithstanding, the Tribunal may still consider whether an applicant’s circumstances meet those set out within the policy and refer their case for Ministerial consideration. Importantly, whether the Tribunal does so, an applicant is still entitled to seek Ministerial intervention themselves.

   [38]  Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary of Department of Home Affairs [2023] HCA 10.

4. The policy describes the ‘unique and exceptional circumstances’ in which the Minister may wish to exercise his power to intervene in the public interest, and ‘other relevant information’ related to that power. The Tribunal considers the following circumstances to be relevant to the applicant:

   4. Unique or exceptional circumstances

   Cases that have one or more unique or exceptional circumstances, such as those describe below, may be referred to me for possible consideration of the use of my intervention powers:

   §strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident

   …

   5. Other relevant information

   §For all cases referred to me under these guidelines, the Department will provide information on any other relevant issues, including the following:

   circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations

5. The Tribunal has considered the relevant documentation provided by the applicant, including the applicant’s statement, and the letters of support that he submitted. The Tribunal also considered the evidence that the applicant, Ms Emily Kay, Ms Natalie Dowling and the representative gave at the hearing.

6. Based on the applicant’s evidence, the Tribunal accepts that the applicant attempted to obtain permanent residency through his employment at Stanley Black & Decker, that this pathway closed when he was made redundant, and that if he had to return to Italy, it would be difficult for him to obtain Australian permanent residency through other avenues. The Tribunal accepts that the applicant is the father of Marley Kay and that he co-parents Marley with Ms Emily Kay. The Tribunal also finds that the applicant and his son have a meaningful relationship, and that the applicant is a devoted father.

7. The Tribunal accepts the applicant’s evidence that if he could not remain in Australia, Marley, an Australian citizen, would suffer serious, ongoing and irreversible harm and continuing hardship. The Tribunal has also considered the best interests the child as the primary consideration.

8. Therefore, based on the applicant’s evidence, the Tribunal is satisfied that his case is one of unique and exceptional circumstances. Accordingly, the Tribunal recommends that the Minister consider the exercise of discretion pursuant to s 351 of the Act on the basis that this case is one of strong compassionate circumstances that if not recognised would result in serious, ongoing, and irreversible harm and continuing hardship to an Australian citizen.

Jason Pennell
Senior Member