1501713 (Migration)

[2016] AATA 3201

1501713 (Migration) [2016] AATA 3201 (9 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Oliver Aceski

VISA APPLICANTS:  Mr Stefan Aceski
Mrs Elica Aceska

CASE NUMBER:  1501713

DIBP REFERENCE(S):  OSF2013/080131

MEMBER:Wendy Banfield

DATE:9 February 2016

PLACE OF DECISION:  Sydney

DECISION:The tribunal affirms the decision to refuse the visa applicants a subclass 143 Contributory Parent – Migrant (class CA) visa

Statement made on 09 February 2016 at 11:28am

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 16 December 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 applicant applied for the visa on 6 March 2013. The delegate refused to grant the visa as they were not satisfied that the visa applicant satisfied the criteria in cl.143.213. Specifically, the delegate was not satisfied that the visa applicant satisfied the balance of family test that requires there to be more or an equal number of eligible children as ineligible children.

   Background

3. The primary visa applicant Stefan Aceski was born in Macedonia and is currently 60 years of age. He and the secondary applicant, Elica Aceska are the parents of the review applicant, Oliver Aceski and are therefore members of the family unit.

4. The primary and secondary applicants have twin adult children, Olivera Nineska who lives in Macedonia and Oliver Aceski, the sponsor who is an Australian citizen. The primary applicant has a daughter from an earlier marriage, Keti Stojanova who resides in the United States.

5. The primary applicant and Keti Stojanova’s mother divorced in 1977 and he claims he was prevented from seeing his daughter by the family of his former wife. Following court proceedings, Keti was “given for keeping, educating and caring” into the custody of her mother and the primary applicant was ordered to provide financial support. He claims he did not see his daughter again and had no knowledge of her whereabouts until recently.

6. The review applicant appeared before the Tribunal on 4 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife, Daniela Aceski. The Tribunal hearing was conducted with the assistance of an interpreter in the Macedonian and English languages.

   The hearing

7. The Tribunal takes into account the evidence provided by the review applicant, Oliver Aceski and his wife Daniela Aceski at the Tribunal hearing. They explained that as Stefan Aceski’s family, they had not been aware of Keti Stojanova’s existence until it came to making the visa application which is the subject of this review. When the family did become aware of Keti, they made sure her name was included as a child of Stefan Aceski, even though at that time they did not know her whereabouts. It subsequently came to light that she is a resident of the United States.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether there are more ineligible children than ineligible children in the balance of family test that is required to be satisfied for the grant of the visa.

10. 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’.

11. ‘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. Children counted towards the test include all natural, adopted and step-children of the parent or the parent’s current spouse or current de facto partner. 

12. However, of relevance in the present case, no account is taken of children who have been removed from the ‘exclusive custody of the parent’ by court order, adoption or operation of law. In applying the balance of family test, no account is to be taken of a child of the parent if the child has been removed by court order, adoption or law (other than marriage) from the “exclusive custody” of the parent. This refers to circumstances where a  person, in the first instance, had exclusive custody of the child (for example, as a result of the death of a partner or awarding of sole custody by a court order) and, subsequently, that custody is removed (for example, as a result of the child being adopted out or removed by court order.

13. In the present case, the primary applicant never had custody of his daughter Keti, it was granted in the first instance to his former wife by order of the District Court in Bitola, Macedonia. In addition, the court order makes no other findings regarding the primary applicant’s legal rights or access to the child. That was a matter for the parties themselves to decide or to determine through the courts. Therefore, it is necessary to include Keti in the balance of family test, even though the primary applicant claims he has had no contact with her since 1977. This is because even if an applicant parent has divorced and sole custody is granted to the other parent, the applicant is not considered to have had that child removed from their exclusive custody.

14. As there are two ineligible children, Keti Stojanova who resides in the United States and Olivera Nineska who lives in Macedonia, and only one eligible child, Oliver Aceski who is an Australian citizen, the primary visa applicant does not satisfy the balance of family test pursuant to reg 1.05. As such, the primary applicant does not meet the criteria in cl.143.213.

    Secondary applicant

15. As the primary visa applicant, Stefan Aceski does not meet the criteria for the grant of the visa, the secondary applicant, Elica Aceska does not satisfy cl.143.321 and is not eligible for the grant of the visa.

    DECISION

16. The Tribunal affirms the decision to refuse the visa applicants a subclass 143 Contributory Parent – Migrant (class CA) visa.

    Wendy Banfield
    Member