Criteria for applying for Contributory Parent visa (subclass 143)
Abdul Ahmad is a citizen of Malaysia. Abdul has been involved in the infrastructure business having owned a company for the past 40 years. This involves obtaining projects from the government of Malaysia as well as local government for road and other infrastructure. He has been highly successful in this business. Abdul is married to Yasmin, who is herself a citizen of Singapore.
He has two daughters who are citizens of Australia, having both being sponsored to Australia many years ago by an international accounting firm. They are both married to Australian citizens. He has seven grandchildren. One of their grandchildren, Heather, aged 7, has been diagnosed with severe Down Syndrome. Heather is especially close to Abdul and Yasmin and whenever possible they have been flying to Australia to look after her. Because of this situation, Abdul and Yasmin have applied for a Contributory Parent visa sub class 143.
One year after the application was lodged, Abdul and Yasmin were asked to undergo health and character checks. Abdul’s police clearance showed that he had a criminal record. This information was submitted to the Department. Yasmin was shocked that Abdul had a conviction for corruption and was sentenced to 2 years jail but was released after 1½ years because of good behaviour. He informed Yasmin that it was necessary in Malaysia to obtain government projects that he paid this fee to the public servant in order for him to secure the contract. This arrangement was organised by an employee of his company. He did not consider this to be a bribe as that was the manner in which business was done in Malaysia at that point in time. This happened over 30 years ago and since then Abdul has implemented processes in his company to ensure that this did not occur again.
Abdul is concerned as he has just received a notice of intention to consider refusal of their visa application under section 501.
Abdul and Yasmin have come to see you and asked for your assistance with preparing a submission to the Department. They advise you that besides this conviction Abdul has not had any convictions since this incident. Abdul has established various charitable foundations in Malaysia and Singapore including a women’s refuge centre and has donated a significant proportion of the company’s profits to the general hospital in Kuala Lumpur.
You are required to:
1. Prepare a concise submission to the Minister arguing that Abdul and Yasmin’s visa application should not be refused under s.501.
2. Advise Abdul and Yasmin that in the event the application is refused, what visas, if any could they apply for.
3. Abdul and Yasmin are extremely concerned and ask you about the probability of success of your response to the Minister in relation to the potential s.501 refusal. What are your obligations under the Code of Conduct in this regard?
Abdul Ahmed has been successfully involved in infrastructure business in Malaysia for past 40 years and he takes projects from Malaysian government as well as from local governments. His daughters are Australian citizens as they were sponsored to Australia by an accounting company. One of his grandchildren named Heather whose age was 7 years, has been diagnosed with severe Down Syndrome. As Heather is very close to Abdul and Yasmin, they fly to Australia to be with her and due to this reason; they have applied for a Contributory Parent visa sub-class 143.
The Contributory Parent visa (sub-class 143) permits the parents to reside in Australia if their child is a citizen of Australia or is permanent resident of Australia. The applicants can apply for the Contributory Parent visa (subclass 143) in two years of their residing in Australia on 173 visas in case they prefer to live in Australia on permanent basis. In order to apply for Subclass 143, the applicant must have a temporary Contributory Parent visa (subclass 173) and must fulfil all the standards appropriate to that visa (subclass 173), which include child must be Australian citizen residing legally in the country for minimum two years; must have a sponsor; must fulfil the family test and must also fulfil the health and character requirements.
First of all, they have applied for Contributory Parent visa (subclass 143), it is essential that they must have met the criteria under Contributory Parent visa (subclass 173). The criteria under this subclass require meeting the medical and character requirements of the applicant. When after one year of applying for visa, Abdul and Yasmin were asked to undergo health and character checks. The police clearance of Abdul revealed that he had a criminal record then on what basis, they were allowed under subclass 173 in the country. It was revealed that Abdul had been convicted for corruption and was provided 2 years imprisonment but he was free after 11/2 years because of his good conduct; however, he has not considered it to be as bribe.
There are 2 steps of decision taking to be followed under section 501 of the Migration Act. At the first step, the Minister or delegating authority are required to consider that the individual justifies the character test which is measured as threshold test for the refusal of visa application under subsection 501(6) and if they get contented that the threshold test under subsection 501(1), (2), or (3) for the refusal has been fulfilled. The second step involves the Minister or their delegate to take decision to use their prudence to refuse the visa of the individuals. The Minister might refuse to allow visa or might cancel it under section 501(3) if he or she does not satisfy the Minister regarding their character test and even the Minister is contented that the refusal of visa would be in national concern.
Implications of Section 501 of the Migration Act on visa applications
The visa application by Abdul and Yasmin should not be refused under Section 501 of the Migration Act. There are various concerns about the human rights of the individuals whose applications for visas are refused under section 501 of the Migration Act. Due to Visa refusal under section 501, it results in the parting of parents from their children. When the visa of parents gets refused, they cannot reside in Australia and it affects the life of their children to a greater extent.
It depends on the circumstances that an individual can be relevant to the Administrative Appeals Tribunal (AAT) for reconsideration of the virtues of decision after the denial of visa application under section 501 of the Migration Act. However, as the decision has been made by the Minster as submission is to be provided to the Minister, merit review by the AAT is not possible. But, the Minister possesses power to leave behind the decision taken by the DIAC officer following section 501 under certain circumstances. It is required that the Minister should reserve the original decision regarding positive or negative for the applicant. The Minister is considered as the highest authority and their decision to cancel or refuse visa to be reviewed by the AAT.
Under Section 501 of the Migration Act, if a person fails the character test occurring within the mentioned bases under subsections 501(6) (a) to (d) which are;
- considerable criminal record
- imprisonment for immigration custody crimes
- relationship with crime suspects
- Previous or existing criminal conduct
- major risk of specific types of criminal behaviours in future
Abdul have considerable criminal record as he was convicted for corruption and was sentenced for 2 years but released only after 11/2 years due to his good conduct. So, these justifying factors might be taken into consideration if the decision maker considers if to use the prudence to reject the visa of an individual. In the process of making that decision, the delegate of the Minster could set out a number of primary concerns and various other concerns under Direction No. 55.
The primary considerations under Direction No. 55 that could be taken into consideration are the welfare of small children. While deciding about refusal of a visa, the decision taking authority must consider the additional primary concerns of power, period and temperament of the individual association with Australia. However, other considerations are of less significant than the primary consideration, the immediate family of the individual can be affected due to the refusal of the visa application.
Taking into consideration all these facts, the Minister should not refuse the visa application of Abdul and Yasmin as their grand child needs them when she is suffering from Down Syndrome and is close to them. However, her parents are there to look after her but she is emotionally attached to her grandparents because of which they have to travel every now and then to be with her. Considering these specific serious circumstances, they should be allowed to apply for visa of Australia under Contributory Parent visa (sub class 143).
Other visa options for Abdul and Yasmin
To apply for Contributory Parent Visa, an individual must be the parent of the Australian citizen. If the application of visa is denied, Abdul and Yasmin could apply for other visas as well. As they are elderly parents of citizens of Australia, they can apply for Contributory Aged Parent (Migrant) visa (subclass 864) or Contributory Aged Parent (Temporary) visa (subclass 884)?also.
For Contributory Aged Parent (Migrant) visa (subclass 864) as well as Contributory Aged Parent (Temporary) visa (subclass 884), it is essential to fulfil the age criteria, which is eligibility of pension age in Australia. The age of more than 65 years is essential and the individual should be sponsored by their children. However, there is requirement of fulfilling medical and character aspects, you will be required to submit police certificate when requested to by the department. There are certain circumstances under which, the Department or the Minister can use good judgment not to refuse visa. It is under discretionary powers and Ministerial Direction 65 that the Minister or their delegate decides regarding refusal or acceptance of the visa application. While taking this decision, numbers of factors are taken into consideration such as safety of the Australian community, expectations of the Australian community, welfare of minor children of the applicant in Australia who might get affected by a decision to refuse the visa of the individual, legal obligations of the country towards other countries, influence of denial of visa on family of the individual residing in Australia as well as impact on Australian business interests.
Taking into consideration, all these aspects it is evident that Abdul and Yasmin can also apply for other visas but the character requirement would be mandatorily satisfied by them. As Abdul had been convicted for two years, there is no provision to approve his character requirement and no justification could be placed. However, submission to the Minister might get approved and refusal order might be revoked because Minster is considered as the highest authority and their decision cannot be challenges. Considering good behaviour of Abdul, he was released from jail after 11/2 years. Moreover, he had done number of charitable acts in his life which should also be taken into consideration. He had not been convicted ever since and should be provided fair opportunity to prove that he has now become a good person. Furthermore, he has been in business for 40 years now and had never been found involved in criminal acts. So, visa application should be approved by the Minister.
Abdul and Yasmin are highly worried about the likelihood of success of the response to the Minister regarding the possible section 501 refusal. The responsibilities under the Code of Conduct incidentally would be to provide assistance to the applicants related to the provisions.
It depends on the discretion of Minister if he or she would consider the application of the applicants based on the circumstances being faced by their immediate family in Australia. Under Ministerial Direction 65, the Minister or their delegate could consider the submission of Abdul and Yasmin considering the serious medical condition of their grandchild and for the best interests of their grandchild; the Minister might allow their application. However, they have fulfilled all the criteria under the visa application requirements; the character requirement of Abdul has become an issue. As he had been convicted for more than 12 months, his character is not satisfactory for the visa application requirement. However, it might be considered by the Minister that he had been released 6 months before his release because of his good conduct. Furthermore, he had never been found involved in any criminal acts since then and has been in business successfully and take government contracts as well. It means the government of Malaysia has no doubt regarding his integrity and trustworthiness and he has become a person with good conduct now. Additionally, he is doing number of charitable activities in Malaysia and Singapore currently and is utilizing the profits from his business in variety of charitable acts all over the country.
Thus, the probability of success of their response to the Minister is good. If the Minister would consider the medical conditions being faced by the family of applicants in Australia and need of their presence in Australia, they would allow their application. As their grandchild needs them in serious medical condition, they should be allowed by the Minister to go to Australia to be with their 7 year old child. Furthermore, on the ground of his good conduct and charitable activities all over the country and in Singapore, the character requirement satisfaction should not be taken into consideration and he should be given a fair chance to be good and act well. Above all, they want to stay in Australia to be with their grandchild who is suffering from serious medical condition, so there are high hopes that Minister would allow their request and they will be able to clear the mandatory requirements for visa approval of Australia. Under the ethical code of conduct, it would be the mandatory duty to provide them with high hopes that the response will be successfully accepted by the Minister. Otherwise, judicial review can also be taken into consideration for the further actions against refusal of visa application. So, there are other options as well and Abdul and Yasmin should not be extremely concerned about probability of success of their act. In this condition, they should not lose hope and should depend on the discretion of the Minister for the best interests of their immediate family residing in Australia. They should get prepared for other options as well if their submission is refused by the Minister and they should prepare documents to be presented during judicial review if the submission is refused.
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