1514420 (Migration)

[2016] AATA 4406

1514420 (Migration) [2016] AATA 4406 (20 September 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sarah Elizabeth Maria Ludick

CASE NUMBER:  1514420

DIBP REFERENCE(S):  CLF2013/102951

MEMBER:Michelle Grau

DATE:20 September 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 20 September 2016 at 4:28pm

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 to refuse to grant the applicant an Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 22 April 2013. At the time the visa application was lodged, the Aged Parent (Residence) (Class BP) visa contained one subclass, Subclass 804 (Parent): Item 1124A in Part 1 of Schedule 1 to the Migration Regulations 1994 (the Regulations). The criteria for a Subclass 804 visa are set out in Part 804 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.804.214.

3. The delegate refused to grant the visa on 30 September 2015 on the basis that cl.804.214 was not met because the applicant did not meet the balance of family test, because she only had one child who was an Australian citizen in Australia and three other children who resided in other countries.

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

5. On 22 August 2016 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on20 September 2016. On15 September 2016 the applicant advised the Tribunal, via a letter from her migration agent that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

6. On the scheduled day and time of the hearing, there was no appearance by the applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa application was made on the basis that the applicant is the parent of Helena Du Plessis (‘the child’).

   Is the ‘balance of family test’ satisfied?

9. 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).

10. 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).

11. ‘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).

12. According to her visa application, the applicant has four living children and one who has passed away. The children were:

    a.Helena Du Plessis who is an Australian citizen and resides in Australia

    b.Ernst Ludick who is deceased

    c.Frank Ludick who resides in Dubai

    d.Bonita Rademeyer  and Christo Ludick who reside in South Africa

13. The tribunal therefore finds the applicant has only one eligible child and three non-eligible children as defined in r1.05. As a result the tribunal finds the applicant does not have sufficient eligible children to meet r1.05.

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

15. For the reasons above, the Tribunal finds that the applicant does not meet the criteria for a Subclass 804 visa.

    DECISION

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

    Michelle Grau
    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.