When Andrea Tindiani and his nine-year-old son, Marley, get together the pace is fast. Last weekend Marley wanted to head to the nearest trampoline centre. Other days it might be swimming, fishing or kicking a ball in the park.
“I want to expose him to as wide a variety of experiences as possible,” says Tindiani.
Every Friday, Tindiani leaves his home in the Victorian town of Castlemaine to reach Marley’s primary school south-west of Ballarat by pickup time. Then they drive back to Castlemaine. It’s a three-hour round trip that Tindiani repeats early on Monday morning, so Marley is at school before the bell.
“My own father was pretty absent during my childhood,” says Tindiani. “I’m determined not to have Marley repeat that experience.”
From Monday to Thursday, Marley lives with his mother, Emily Kay, and two siblings, who rarely see their own fathers. Tindiani has been the one consistent man in their lives, says Kay. “He’s really been a dad to them all.”
After 11 years in Australia, time is running out for Tindiani. The 38-year-old is on the brink of being forced to return to Italy and leave Marley behind. Tindiani has jumped across a series of temporary visas to stay close to his son, but never managed the leap to permanent residence, and he has nearly exhausted his options to remain in Australia. He is one of “too many” migrants stuck in what the home affairs minister, Clare O’Neil, calls “permanently temporary limbo”, a state she cites as an example of the migration program failing to align with Australian values.
Marley is an Australian citizen, Tindiani has always shared his care and Kay needs him as co-parent. Yet under immigration rules, none of these factors help him get a visa.
Stephanie Lee, a senior solicitor at Sydney’s Immigration Advice and Rights Centre (IARC), says there are many temporary migrants with Australian children in similar circumstances and many are much more vulnerable than Tindiani.
“We see people in this situation every week. It’s very often women escaping domestic violence who have fled an abusive partner,” she says.
Lee says these parents face an invidious choice – either separate from their Australian child or try to live below the radar and stay in Australia unlawfully.
The only person who can help is the immigration minister, Andrew Giles, who has the power to grant a visa using one of his public interest powers, sometimes called “God powers” because of their fateful impact on people’s lives. Yet getting to the minister can be a long and circuitous process.
Falling through a gap
Tindiani’s Australian story begins in July 2012. He arrived on a working holiday visa, spent time fruit picking and met Kay at a New Year’s Eve party. In 2013 they moved in together. By then, Tindiani had a four-year temporary skills visa, sponsored by Black & Decker, a firm he’d worked for in Italy. With a prospect this would lead to permanent residency, the couple saw no need to apply for a partner visa, especially given the cost (currently $8,850).
They could not know that they were about to fall through a gap in Australia’s immigration system.
Soon after Marley’s birth in mid-2014, the couple split up. “It was my call,” says Kay. “Andrea went through a bit of heartbreak, but he picked up and went straight into continuously being an awesome father.”
The couple kept sharing a house for several months and needed no lawyers to sort out parenting arrangements. “There’s never any conflict,” says Kay. When she moved to Yamba on the New South Wales north coast, Tindiani would visit Marley every fortnight, driving seven hours from work in Sydney on Friday afternoon and heading back before dawn on Monday.
In 2016, redundancies at Black & Decker cost Tindiani his job and his right to a skilled migrant visa. He switched back to the working holiday scheme, entitled to a second 12-month visa because he had worked on farms for three months. Had Tindiani and Kay applied for a partner visa when they were still a couple, they would not be in the fix they are in now. Even if their relationship had ended before the visa was granted, the application itself would have provided a relatively straightforward path to permanent residence, because of Tindiani’s obligations to his Australian child.
In the absence of an application for a partner visa, Tindiani had no way of seeking to remain in Australia permanently. So to be close to Marley, he stayed on a succession of student visas, gaining qualifications in sports coaching, yoga teaching and communications. He built a career in “men’s work”, facilitating programs to build men’s emotional intelligence, fitness and mental health. He also works two days a week managing a hospitality venue in Daylesford.
Tindiani’s unblemished migration record, skills and work experience do not meet the threshold for a permanent visa. His last hope of staying a fully engaged father to Marley is now intervention by Giles. But the minister can only intervene after a visa application is rejected at every stage.
“You have to do a baseless, non-meritorious application to get to the minister,” explains accredited immigration law specialist Joseph Italiano, who represents Tindiani.
Italiano helped Tindiani apply for a confirmatory residence visa intended for residents of Norfolk Island. “I chose a visa that didn’t cost much, knowing that Andrea was ineligible,” says the lawyer. The strategy was to open up the possibility of ministerial intervention as quickly and cheaply as possible.
When Tindiani’s application was rejected, they sought a review of the decision at the migration and refugee division of the Administrative Appeals Tribunal, joining a backlog of almost 60,000 cases. This sat uncomfortably with Italiano, who spent 10 years sitting on the tribunal himself.
“People like my client are forced to clog up the queue,” says Italiano. “Believe me, if there was a pathway to go to the minister directly, I would have done that.”
In July, the tribunal rejected Tindiani’s review and referred the case to the minister. This is what Tindiani and Italiano had been hoping for.
Giles has the power to grant any visa he chooses, though there is no telling if or when the minister will consider Tindiani’s case. But it is Giles and Giles alone who can intervene; in April, the high court ruled the minister must make each decision personally rather than delegate them to the department. (The minister declined to comment, citing privacy reasons.)
‘A really common problem’
Between taking office in May 2022 and June this year, Giles received more than 4,300 requests for intervention under five separate public interest powers, but only about 3,300 requests were finalised under those powers over the same period, suggesting a growing backlog of cases. (Home Affairs was unable to say how many requests await the minister’s attention and this data is calculated from the department’s answer to a question on notice posed on 20 June by Coalition senator James Paterson.)
While Tindiani waits for his folder to rise to the top of the minister’s pile, he lives on a succession of short-term bridging visas.
IARC’s Lee wants to see a simple pathway to residency for the foreign parents of Australian children. “This is a really common problem,” she says. “It’s baffling that there isn’t a visa option for them to stay together with their children.”
Italiano says both sides of politics have long ignored this gap in migration law; a gap he says could be closed without legislation, by amending the partner visa regulations. “You can’t have hundreds of applications going to the minister. It’s no way to run government.”
Tindiani and Kay are honest with Marley about what is going on. “We tell him everything,” says Tindiani. “We’re not saying Dad’s going to leave. We give him a message of truth and hope.
“Marley’s probably not focusing on the fact that I might not be here, but his behaviour shows he’s a bit anxious.”
Kay dreads the prospect that her son’s father will be forced to leave Australia.
“To Marley, Andrea is everything,” she says.
Tindiani, meanwhile, looks drawn. He is not sleeping well and struggling to throw off a persistent cough. As well as holding down two jobs, he works long hours on his visa campaign and devotes weekends to his son.
“I’m keeping strong and keeping present, especially when I’m with Marley,” he says, “but it’s costing me a lot.”
“I’m living day by day. Nothing is guaranteed. “I live with uncertainty, stuck in a place where I have very little control.”
Tindiani says what is at play is the right to family life.
“It’s a human right. It’s my story, but it’s a human story,” he says. “To what point does bureaucracy disregard what is logical in any human sense?”