1414233 (Migration)

[2015] AATA 3436

1414233 (Migration) [2015] AATA 3436 (29 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Phaik Sim Cheah

CASE NUMBER:  1414233

DIBP REFERENCE(S):  CLF2012/218632

MEMBER:Alan Duri

DATE:29 September 2015

PLACE OF DECISION:  Sydney

DECISION:The tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

Statement made on 29 September 2015 at 10:30am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Ms Cheah was born in Malaysia in 1939.

2. On 26 October 2012 Ms Cheah applied for an Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).  The sponsor of the application was her daughter Ms Sheela Kulasingham.

3. The delegate refused to grant the visa on 5 August 2014 on the basis that cl.804.214 was not met. In particular the delegate found that the balance of family test was not met because Ms Cheah has two children living in Malaysia.

4. On 20 July 2015 the tribunal wrote to Ms Cheah and invited her to give oral evidence and present arguments at a hearing on 28 September 2015.  Ms Cheah was advised that if she did not attend the hearing and a postponement was not granted, the tribunal may make a decision on the case without further notice.  No response was received and Ms Cheah did not appear before the tribunal on the day and at the scheduled time and place.  On 21 September 2015 and 25 September 2015 the tribunal sent SMS messages to Ms Cheah’s last known mobile phone number to remind her of the hearing.   In these circumstances, and under s.362B of the Act, the tribunal has decided to make its decision on the review without taking any further action to enable Ms Cheah to appear before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The visa application was made on the basis that Ms Cheah is the parent of Ms Kulasingham.

   Is the ‘balance of family test’ satisfied?

6. With limited exceptions not relevant in the present case, cl.804.214 requires at the time of the application the applicant must satisfy the balance of family test, as defined in r.1.05 (see attachment to this decision).

7. An applicant satisfies the balance of family test if the number of his or her eligible children is either: greater than or equal to the total number of ineligible children: r.1.05(2C); or greater than the greatest number of ineligible children who are usually resident in a particular overseas country: r.1.05(2D).

8. ‘Children’ for these purposes includes all natural, adopted and step-children (as defined in r.1.03) of either the parent or the parent’s current spouse or current de facto partner: r.1.05(1)(a). However, no account is to be taken of certain children as specified in r.1.05(3). If the whereabouts of a child of the visa applicant is unknown, the child is taken to be resident in the child’s last known usual country of residence: r.1.05(1)(b).

9. According to the visa application Ms Cheah has the following children:

   ·Sharmi binti Abdullah, born 4 December 1965 and resident in Malaysia.

   ·Viknasisngham Kulasingham, born 30 November 1966 and resident in Malaysia.

   ·Sheela Kulasingham, born 6 April 1970 and resident in Australia.

10. Ms Cheah provided a letter with her review application indicating that she has a close relationship with her daughter Ms Kulasingham.  The context of the letter corroborates the information in the visa application concerning the existence of the two other children in Malaysia.

11. As noted above cl.804.214 requires that the balance of family test needs to be satisfied as at the time of the visa application.  Relevantly in this case if a person has three children, at least two of then needs to be usually resident in Australia to satisfy the balance of family test. 

12. On the basis of the findings above, Ms Cheah does not meet the balance of family test in r.1.05 and therefore does not satisfy cl.804.214.

13. It follows that Ms Cheah does not meet the criteria for a Subclass 804 visa.

    DECISION

14. The tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

    Alan Duri
    Member

    ATTACHMENT – Legislation Extracts from Migration Act 1958 and Migration Regulations 1994

    5CA Child of a person

    (1)Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:

    (a)someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);

    (b)someone who is an adopted child of the person within the meaning of this Act.

    (2)The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.

    (3)Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.

    1.03      Definitions

    …

    step-child

    in relation to a parent, means:

    (a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or

    (b)a person who is not the child of the parent but:

    (i)who is the child of the parent’s former spouse or former de facto partner; and

    (ii)who has not turned 18; and

    (iii)in relation to whom the parent has:

    (A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

    (B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

    1.05      Balance of family test

    (1)For the purposes of this regulation:

    (a)a person is a child of another person (the parent) if the person is a child or step child of:

    (i)the parent; or

    (ii)a current spouse or current de facto partner of the parent; and

    (b)if the whereabouts of a child of the parent are unknown, the child is taken to be resident in the child’s last known usual country of residence.

    (2)For this regulation:

    (a)a child of the parent is an eligible child if this child is:

    (i)an Australian citizen; or

    (ii)an Australian permanent resident usually resident in Australia; or

    (iii)an eligible New Zealand citizen usually resident in Australia; and

    (b)any other child of the parent is an ineligible child.

    (2A)An ineligible child is taken to be resident overseas.

    (2B)The overseas country in which an ineligible child is taken to reside is:

    (a)the overseas country in which the child is usually resident; or

    (b)the last overseas country in which the child was usually resident; or

    (c)if the child no longer has a right of return to the country mentioned in paragraph (a) or (b) — the child’s country of citizenship.

    (2C)A parent satisfies the balance of family test if the number of eligible children is greater than or equal to the number of ineligible children.

    (2D)However, if the greatest number of children who are:

    (a)ineligible children; and

    (b)usually resident in a particular overseas country;

    is less than the number of eligible children, then the parent satisfies the balance of family test.

    (3)In applying the balance of family test, no account is to be taken of a child of the parent:

    (a)if the child has been removed by court order, by adoption or by operation of law (other than in consequence of marriage) from the exclusive custody of the parent; or

    (b)if the child is resident in a country where the child suffers persecution or abuse of human rights and it is not possible to reunite the child and the parent in another country; or

    (c)if the child:

    (i)is resident in a refugee camp operated by the United Nations High Commissioner for Refugees; and

    (ii)is registered by the Commissioner as a refugee.

    1.14A     Parent and child

    (1)A reference in these Regulations to a parent includes a step-parent.

    (2)For subsection 5CA(2) of the Act, if a child has been adopted under formal adoption arrangements mentioned in paragraph 1.04(1)(a) or (b) by a person or persons (the adoptive parent or parents):

    (a)the child is taken to be the child of the adoptive parent or parents; and

    (b)the child is taken not to be the child of any other person (including a person who had been the child’s parent or adoptive parent before the adoption).

    Note 1A child cannot have more than 2 parents (other than step-parents) unless the child has been adopted under arrangements mentioned in paragraph 1.04(1)(c).

    Note 2Parent is defined in subsection 5(1) of the Act, and child is defined in section 5CA of the Act.