1416601 (Migration)

[2015] AATA 3866

1416601 (Migration) [2015] AATA 3866 (11 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Olufemi Ajoke Ashley-Dejo

CASE NUMBER:  1416601

DIBP REFERENCE(S):  CLF2014/103238

MEMBER:Lisa Lo Piccolo

DATE:11 December 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Temporary) (Class UU) visa.

Statement made on 11 December 2015 at 1:53pm

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 10 September 2014 to refuse to grant the visa applicant a Contributory Aged Parent (Temporary) (Class UU) Subclass 884 visa under s.65 of the Migration Act 1958 (the Act).

2.The visa applicant applied for the visa on 25 July 2014. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.884.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she did not meet the balance of family test as set out in r.1.05 at the time of application. A copy of the Department’s decision record was provided to the Tribunal by the applicant.

3.On 6 October 2015 the applicant lodged a request for review of the Department’s decision with this Tribunal.

4.The applicant appeared before the Tribunal on 22 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter Olakinto Hensworth.  Angela Chan, Nathanael Nixanta, and Peter Hensworth were also available to give evidence but the Tribunal did not call them to give evidence.

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

7.The issue in the present case is whether the applicant meets the balance of family test as set out in r.1.05. At the time of application, the applicant must satisfy the balance of family test if not the holder of a substituted Subclass 600 visa: cl.884.213. In the present case, the applicant was not the holder of a substituted Subclass 600 visa at the time of application, and must therefore meet the balance of family test.

8.For visa applications made on or after 1 July 2011, the balance of family test requires the number of a parent's 'eligible children' to be greater than or equal to the number of 'ineligible children', or that the greatest number of 'ineligible children' who are usually resident in a particular overseas country is less than the number of 'eligible children'.

9.'Eligible child' is defined as a child of the parent who is an Australian citizen, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen usually resident in Australia. Any other child of the parent is an ‘ineligible child’ who will then count against the number of ‘eligible children’.

10.Children counted toward the test include all natural, adopted and step-children of the parent. However, no account is to be taken of children who have been removed from the ‘exclusive custody’ of the parent by a court order, adoption or operation of law; or children who experience human rights abuse or persecution and it is not possible for the family to be reunited in another country; or children who are residents of refugee camps operated by UNHCR and are registered with the UNHCR.

11.The applicant was born in Nigeria in 1937 and is now almost 79 years old. In her application she declared that her husband is deceased and she has four children, as follows:

·      Ajibabi Yewande Smith (female) born 30 November 1969 resides in United Kingdom

·      Olakinto Hensworth (female) born 9 May 1975 resides in Australia

·      Olurotimi Ashley-Dejo (male) born 29 May 1969 resides in Nigeria

·      Olumide Ashley-Dejo (male) born 21 July 1965 resides in Nigeria

12.In the Decision Record, a copy of which the applicant provided to the Tribunal, the delegate stated that as the total number of eligible children of the applicant (one) is less than the number of ineligible children (two), the applicant does not meet the balance of family test. The delegate noted that there were no discretionary criteria for the Contributory Aged Parent visa. The delegate stated that the applicant was invited to comment on the specific issue before the decision was made. In response to the invitation to comment letter, written statements were provided to the Department from the applicant and the sponsor.  The applicant conceded that she was unable to satisfy the balance of family test noting that all other criteria are satisfied.  She said they lodged an application for a temporary Contributory Aged Parent visa for practical reasons in order to seek the option of Ministerial Intervention under section 351 of the Act.  She stressed her desire to reside permanently in Australia with the sponsor who is the only child who is able to offer her continuous support. 

13.In her written submissions to the Tribunal, the applicant’s migration agent conceded that the applicant does not satisfy the balance of family test for a Subclass 884 visa as most of her children are not citizens or permanent residents currently residing in Australia. She requested that the Tribunal refer the matter to the Minister and recommend that he consider exercising his powers to permit the applicant to remain in Australia with her daughter and son-in-law. He submitted that the applicant had Intended to lodge an aged dependent relative visa (subclass 838) but was prevented from lodging this application due to the repeal of this subclass at the relevant time.  He further submitted that although the repeal of the subclass 838 visa was disallowed, unfortunately, the impact of section 48 means the applicant is prevented from lodging such an application.  Although the applicant is not precluded from departing Australia to lodge a subclass 114 visa, the applicant does not have another home to go to either in Nigeria or the United Kingdom and holds concerns that the Department may not allow her to return to Australia. 

14.At the hearing, the applicant and the sponsor gave evidence that the applicant’s two sons living in Nigeria have significant health problems of their own and are not in a position to care for the applicant. They also both stated that the husband of the applicant’s daughter in the United Kingdom has lost his job and is no longer prepared to support the applicant. Her daughter and son-in-law in Australia are providing her with accommodation and meals, and attending to her needs.  They are financially comfortable as they both have secure well paid employment, have their own home and have superannuation and savings. Sponsor gave evidence that she and her husband are able to pay for any medical expenses in Australia and attend to any of her requirements. She is therefore not a drain on the public purse.

15.The Tribunal is satisfied on the basis of the evidence before it that the applicant has four children, all of whom are her biological children. The Tribunal finds that at the time of application three of her children were ineligible children and one was an eligible child. It follows that the Tribunal is not satisfied that the balance of family test is met in this case given the number of eligible children was not greater than or equal to the number of ineligible children.

16.The Tribunal notes that these findings were not disputed by the applicant’s migration agent and were consistent with the applicant’s own evidence and the information provided to the Department.

17.On the information before it, the Tribunal finds that the applicant does not meet the balance of family test at the time of application and therefore does not satisfy cl.884.213.

18.For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

MINISTERIAL INTERVENTION

19.The applicant has acknowledged that when the application was filed she did not meet the criteria for the grant of the visa and requested the Minister to intervene in the application. The Tribunal supports the request for Ministerial intervention.

20.The circumstances the Tribunal finds supports the request for Ministerial intervention are as follows:

·      The applicant filed her application for the contributory aged parent visa less than one month after the subclass 838 visa was repealed.  If the applicant filed a subclass 838 visa application she would likely have met the definition.  She is now precluded by s.48 of the Act from lodging a further application onshore.

·      The applicant is well settled and integrated in Australia society and has a close bond with her grandchildren and her daughter and son in law.  She is strongly supported in her application to remain in Australia by friends, members of the Church congregation and members of her local community.

·      The applicant has no home in Nigeria or the United Kingdom and as she is retired she has no means of income.  Her 3 children abroad have significant personal and medical circumstances which prevent them from caring for her.  The sponsor is willing and able to fully support her financially.

1. However, these are not matters that the Tribunal can take into account in making a decision. As the applicants do not satisfy an essential criterion for the visa, the Tribunal has no choice but to affirm the decision under review.  Only the Minister has the discretion to intervene and take these circumstances into account.

2. The Tribunal considers that the circumstances of this case may raise the following matters:

   (a)Strong compassionate circumstances such that a failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or an Australian family unit.

   (b)Circumstances that the legislation does not anticipate or clearly unintended consequences of the legislation or the application of relevant legislation leads to unfair or unreasonable results.

3. Having regard to the circumstances of the applicant and having considered the Ministerial guidelines relating to the Minister's discretionary power under section 351 set out in PAM3 "Minister's guidelines on ministerial powers (sections 345, 351, 417, 454 and 501J)" the Tribunal considers this case should be referred to the Department to be brought to the Minister's attention. 

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Temporary) (Class UU) visa.

Lisa Lo Piccolo
Member