1414936 (Migration)

[2015] AATA 3657

1414936 (Migration) [2015] AATA 3657 (12 November 2015)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ly Bun

VISA APPLICANTS:  Mr Heang Bun
Mrs Chou Bun
Mr Rith Bun

CASE NUMBER:  1414936

DIBP REFERENCE(S):  OSF2009/068420

MEMBER:Margie Bourke

DATE:12 November 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for the Contributory Parent (Migrant) (Class CA) visas for reconsideration, with the direction that the first named visa applicant meet the following criteria for the Subclass 143 visa:

·cl.143.211, cl.143.212 and cl.143.213 of Schedule 2 to the Regulations; and

The Tribunal remits the applications for the Contributory Parent (Migrant) (Class CA) visas for reconsideration with the direction that the second and third named visa applicants meet the following criteria for the Subclass 143 visa:

·cl.143.311 of Schedule 2 to the Regulations.

Statement made on 12 November 2015 at 4:08pm

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 on 11 August 2014 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) Subclass 143 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 28 January 2009. The delegate refused to grant the visa on the basis that the primary visa applicant did not meet the criteria for the Contributory Parent visa as he did not meet the requirements of the balance of family test as defined in r.1.05.

3. The review applicant appeared before the Tribunal on 14 September 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s sister Makara and half sister Theary.  The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

4. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The main issue in the present case is whether the primary visa applicant meets the requirements of the Contributory Parent visa, in particular the balance of family test as defined in r.1.05.

   Balance of family test cl.143.213

7. Cl.143.213 requires that at the time of application, the primary visa applicant, who is neither the holder of a temporary Subclass 173 visa (Contributory parent visa) or a substituted Subclass 676 visa (tourist visa), satisfies the balance of family test. Regulation 1.05(2) states a parent satisfies the balance of family test  if (a) each of the children of the parent is either (i) lawfully and permanently resident in Australia; or (ii) a person who is an eligible New Zealand citizen and usually resident in Australia; or (b) the number of children of the parent who are lawfully and permanently resident in Australia or are eligible New Zealand citizens usually resident in Australia is: (i) greater than or equal to the total number of children of the parent who are resident overseas; or (ii) greater than the greatest number of children of the parent who are resident in any single overseas country.

8. At the time of application the primary visa applicant claimed he had four children, two who resided lawfully and permanently in Australia, and two who resided in Cambodia, and therefore he met the balance of family test. One of the children of the primary visa applicant claimed to reside in Cambodia was the third named visa applicant. One of the claimed children of the primary visa applicant is his step child Theary. Pursuant to r.1.05(3)(d) a step child of the parent can be considered a child of the parent if the child had not turned 18 when the primary visa applicant became the spouse of the child’s other parent, and the child’s other parent is not deceased, or separated or divorced from the primary visa applicant at the time of application.

9. Based on the application form and the marriage certificate, the Tribunal is satisfied that the second named visa applicant is the spouse of the primary visa applicant. The Tribunal is satisfied the second named visa applicant is neither deceased, nor separated or divorced from the primary visa applicant at the time of application. Based on the birth certificate of Theary Oeng, the Tribunal is satisfied that she is the daughter of the second named visa applicant and was born in 1968. Based on the evidence at the hearing, the Tribunal accepts Makara is not the oldest child of the spousal relationship between the primary visa applicant and the second named visa applicant, but the older child Ly Bun does not have a birth certificate. The Tribunal has considered the birth certificate of Makara Bun, which records the primary visa applicant and the second named visa applicant as her parents, and that she was born in 1983.   The Tribunal is satisfied that in 1983 the child Theary Oeng was 15 years of age.  Based on the evidence before the Tribunal is satisfied that the primary visa applicant became the spouse of the step child’s other parent before the step child turned 18.

10. The Tribunal has considered the Department’s decision record dated 11 August 2014, a copy of which was provided to the Tribunal by the review applicant.  The Tribunal has considered that when Theary Oeng applied to migrate to Australia she did not record any siblings.  The Tribunal is satisfied that Theary Oeng did not record any siblings as she did not have any full siblings, and had not resided with her half siblings for a long time.   The Tribunal finds this explanation plausible and credible.  The Tribunal does not draw any negative conclusions from the information provided by Theary Oeng with her application to migrate.

11. The Tribunal has considered the Department’s decision record dated 11 August 2014, which recorded that when the review applicant Ly Bun applied to migrate the information she provided information on her application form was that she had four siblings, and she did not include her half sister Theary Oeng.  In the application form the review applicant had advised she had two sisters, Makara and Hour and two brothers Rith and Chrinh. The review applicant had advised the Department that Hour and Chrinh were her cousins who were brought up by her parents.  Ly Bun stated to the Tribunal that the reason the two cousins were brought up by her parents was that they had been put in an orphanage as young children after their parents were killed.  They were recorded on the family record card as the children of the family. Ly Bun stated she provided the family record card to her solicitor who completed her forms and that is how the incorrect information was provided.

12. The Tribunal has considered the evidence of Ly, Makara and Theary that Chrinh and Hour are their cousins who were brought up in the family home after the death of their parents. The Tribunal accepts the evidence as consistent and credible. The Tribunal has considered the Department’s decision record that DNA testing was offered to the applicants to establish that Chrinh and Hour were not siblings of the review applicant, but that DNA testing was not undertaken by the applicants. The review applicant told the Tribunal that her family had not previously been avoiding DNA testing and were willing to participate in testing to establish that her cousins were not children of her parents. The review applicant stated that they had located Chrinh last year and had recently also located Hour.  The review applicant indicated that she and her two cousins were willing to participate in paternity testing with her parents to establish that Chrinh and Hour were not her parents children.

13. The Tribunal considered DNA testing to establish that the two persons Chrinh Bun and Hour Bun are not children of the primary visa applicant and the second named visa applicant through paternity testing was an appropriate and conclusive course to resolve the claimed relationships in this review. The report of DNA Solutions dated 30 October 2015 concludes that the test results support that the first and second named visa applicants, Heang Bun and Chou Bun, are the biological parents of the review applicant Ly Bun. The report of DNA Solutions dated 30 October 2015 concludes that the test results exclude the first and second named visa applicants, Heang Bun and Chou Bun, as being the biological parents of Chrinh Bun and Hour Bun.  Based on the DNA report conclusions, the Tribunal is satisfied that Chrinh Bun and Hour Bun are not biological siblings of the review applicant or children of the first and second named visa applicants. 

14. For these reasons the Tribunal is satisfied that the primary visa applicant Heang Bun and his spouse Chou Bun, have four children.  The eldest is Theary Oeng, the step child of the primary visa applicant and the Tribunal is satisfied based on the written and oral evidence before it, that she resided in Australia at the time of application and the time of decision.  The Tribunal is satisfied that the sponsor, Ly Bun is an Australian permanent resident, and she resided in Australia at the time of application and the time of decision.  The Tribunal is satisfied that the other two children, Makara Bun and Rith Bun resided in Cambodia at the time of application, and Rith Bun is the third named visa applicant.

15. The Tribunal makes the following findings.  At the time of application the review applicant Ly Bun had lived in Australia since her arrival in 2007, a period of eight years.  Based on the evidence before it the Tribunal is satisfied the review applicant had resided in Australia and had departed Australia for short periods only since her arrival in 2007.  Based on the evidence before it the Tribunal is satisfied the review applicant had resided at the same address for the last 2.5 years, had the same employment for 1 year, and is married. The Tribunal finds that at the time of application, and at the time of decision, the review applicant is a child of the primary visa applicant, is an Australian permanent resident and is usually resident in Australia.

16. At the time of application the step child Theary meets the requirements of r.1.05 and r.1.03 for a child of the primary visa applicant. The Tribunal is satisfied based on the evidence before it, that Theary came to Australia in 1997, and is an Australian citizen. The Tribunal is satisfied that Theary has her own business, and has departed Australia but for periods of less than four weeks.  Based on the evidence before it, the Tribunal is satisfied that at the time of application and at the time of decision, Theary is the step daughter and ‘child’ of the primary visa applicant, is an Australian citizen and is usually resident in Australia.

17. At the time of application the Tribunal is satisfied Rith Bun is the son of the primary visa applicant aged under 18 years and, based on all the academic documents provided was a student in Cambodia. Based on the application forms, at the time of decision Rith Bun is still in Cambodia, residing with his parents and recently turned 20 years and still a student.

18. At the time of application, the Tribunal is satisfied that Makara Bun resided in Cambodia. At the time of decision the Tribunal accepts she resides in Australia on a spouse visa granted in 2013. At the time of decision it is not clear whether this child of the primary visa applicant is currently in Australia on a permanent resident visa.

19. The Tribunal is satisfied that at the time of application the number of children of the primary visa applicant who were lawfully and permanently resident in Australia was equal to the total number of children of the parent who were resident overseas. For all these reasons the Tribunal is satisfied that the primary visa applicant meets the balance of family test at the time of application, and meets the requirements of cl.143.213.

20. The delegate in the Department’s decision record dated 11 August 2014 stated she was not satisfied that the primary visa applicant continued to meet the balance of family test as outlined in cl.143.223. The Tribunal has noted that in that particular subclause has been omitted from the legislation. However the Tribunal is satisfied that at the time of decision the primary visa applicant continues to meet the requirements of the balance of family test. The Tribunal is satisfied that at the time of decision the number of children of the primary visa applicant who are lawfully and permanently resident in Australia is greater than or equal to the number of children of the primary visa applicant who are resident overseas.

    Other primary criteria at time of application

21. For the reasons set out above, the Tribunal is satisfied that the primary visa applicant is the stepfather of Theary Oeng who is an Australian citizen. Further the Tribunal is satisfied that the primary visa applicant and his spouse of the secondary visa applicant are the parents of the review applicant who is a settled Australian permanent resident. The Tribunal is satisfied that the primary visa applicant meets the requirements of cl.143.211(1).

22. The Tribunal has considered the sponsorship forms and the application forms, and the oral evidence before it. The Tribunal is satisfied that the primary visa applicant is sponsored by the review applicant, his daughter who is over the age of 18 years and is an Australian permanent resident. The Tribunal is satisfied that the primary visa applicant meets the requirements of cl.143.212(2).

23. The Tribunal is satisfied that the primary visa applicant Heang Bun, meets the primary criteria of cl.143.211, cl.143.212 and cl.143.213, and therefore satisfies the primary criteria in Subdivision 143.21.

    Secondary criteria

24. To meet the requirements of  cl.143.311, the secondary visa applicants are required to (a) be a member of the family unit of, and make a combined application with, a person who satisfies the primary criteria in Subdivision 143.21 or (b) meet alternative requirements.

25. As stated above the Tribunal is satisfied that the second named visa applicant is the spouse of the primary visa applicant, is a member of the family unit of the primary visa applicant within the meaning of r.1.12(1)(a). The Tribunal has considered the application and sponsorship forms, and is satisfied that the second named visa applicant made a combined application with the primary visa applicant. As stated above the Tribunal is satisfied that the primary visa applicant is a person who satisfies the primary criteria in Subdivision 143.21. Therefore the Tribunal is satisfied that the secondary visa applicant, Chou Bun, meets the requirements of cl.143.311.

26. The Tribunal has considered the birth certificate of the third named visa applicant and is satisfied that the third named visa applicant is the child of the primary visa applicant and second named visa applicant. The Tribunal is satisfied that the third named visa applicant was born in 1985 and was aged 23 years of age at the time of application. The Tribunal has considered the extensive academic records submitted on behalf of the third named visa applicant dating from 2003 onwards. The academic records included the third named visa applicant’s academic transcript record of his bachelor degree studied from 2006 to 2010 at the Phnom Penh International University in which he majored in Information Technology, and the third named visa applicants Sovannaphumi University card dated 2007 and a higher certificate in English awarded in 2007 from the University. The Tribunal is satisfied that at the time of application the third named visa applicant was a full time student.

27. Based on the written evidence of the review applicant and the third named visa applicant the Tribunal is satisfied that Rith Bun has always resided with his parents and has never been employed or earned his own income. The Tribunal is satisfied that at the time of application Rith Bun was wholly or substantially dependent upon his father (the primary visa applicant) (28 January 2009) for financial support for his basic needs of food, clothing and shelter. The Tribunal is further satisfied that Rith Bun was wholly or substantially dependent upon his father for the 12 months immediately before the time of application for financial support to meet his basic needs of food, clothing and shelter. The Tribunal is satisfied that Rith Bun’s reliance on the primary visa applicant is greater than his reliance on any other person or source of support, for financial support to meet his basic needs for food, clothing and shelter.  Based on the evidence before it, the Tribunal is satisfied that the third named visa applicant meets the definition of dependent as set out in r.1.05A.

28. Based on the written evidence provided by the review applicant and the third named visa applicant after the hearing the Tribunal is satisfied that at the time of application Rith Bun was not married or engaged to be married.  For reasons set out above the Tribunal is satisfied that the third named visa applicant is the natural child of the primary visa applicant and the secondary visa applicant. The Tribunal is satisfied that the third named visa applicant had turned 18 at the time of application and was the dependent child of the primary visa applicant at the time of application within the meaning of r.1.03.  Based on the evidence before it the Tribunal is satisfied that the third named visa applicant was a dependent child of the primary visa applicant within the meaning of r.1.12(1)(b) at the time of application.

29. The Tribunal is satisfied based on the application forms that the second named and third named visa applicants made a combined application with the primary visa applicant. As stated above the Tribunal is satisfied that the primary visa applicant is the person who satisfies the primary criteria in Subdivision 143.21. The Tribunal is satisfied that the third named visa applicant meets the requirements of cl.143.311.

    DECISION

30. The Tribunal remits the applications for the Contributory Parent (Migrant) (Class CA) visas for reconsideration with the direction that the first named visa applicant meets the following criteria for a Subclass 143 visa:

    ·       cl.143.211, cl.143.212 and cl.143.213 of Schedule 2 to the Regulations; and

    The Tribunal remits the applications for the Contributory Parent (Migrant) (Class CA) visas for reconsideration with the direction that the second and third named visa applicants meet the following criteria for a Subclass 143 visa:

    ·       cl.143.311 of Schedule 2 to the Regulations.

    Margie Bourke
    Member