Azeer (Migration)

[2018] AATA 5457

Azeer (Migration) [2018] AATA 5457 (9 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Khaliq AZEER

VISA APPLICANT:  Ms Bibi Affroz AZEER

CASE NUMBER:  1616330

DIBP REFERENCE(S):  OSF2013/087092

MEMBER:Shane Lucas

DATE:9 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 143 visa:

·cl.143.211 of Schedule 2 to the Regulations;

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

·cl.143.221 of Schedule 2 to the Regulations.

Statement made on 09 November 2018 at 2:52pm

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 – applicant satisfies balance of family test – number of eligible children equal to number of ineligible children – separation – divorce – decision under review remitted

LEGISLATION
Migration Act 1958, s65
Migration Regulations 1994, rr 1.03, 1.05, Schedule 1, Item 1130(4), Schedule 2, cls 143.211, 143.213, 143.221

Family Law Act 1975

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 19 August 2016 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 is a national of Mauritius born on 5 January 1946. She applied for the visa on 29 August 2013. At the time the visa application was lodged, the Contributory Parent (Migrant) (Class CA) visa contained only one Subclass 143: Item 1130(4) of Schedule 1 to the Migration Regulations 1994 (the Regulations). The criteria for the grant of this visa are set out in Part 143 of Schedule 2 to the Regulations. The primary criteria must be satisfied by at least one applicant. Relevant to this matter, the primary criteria include cl.143.211, cl.143.213 and cl.143.221.

3. The delegate refused to grant the visa on the basis that the visa applicant was not, at the time of application, the holder of a Subclass 173 (Contributory Parent) (Temporary)) visa nor the holder of a substituted Subclass 600 visa, and hence is required to satisfy the balance of family test (cl.143.213). The delegate concluded that the visa applicant did not satisfy the balance of family test, as he determined that she did not have at least half of her eligible children, or more of her eligible children in Australia than in any other country (r.1.05).

4. The review applicant appeared before the Tribunal on 25 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Creole and English languages.

6. The applicants were represented in relation to the review by a registered migration agent.

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

   Relevant law

8. The criteria for the visa require that at the time of application, the applicant be the parent of a person (the child) who is a settled Australian citizen or a settled Australian permanent resident or a settled eligible New Zealand citizen (cl.143.211(1)(a)); that an applicant who, at the time of application, is neither the holder of a subclass 173 (Contributory Parent) (Temporary) visa nor the holder of a substituted Subclass 600 visa, must satisfy the balance of family test (cl.143.213); and that at the time of decision, the applicant continues to meet the requirements set out in cl.143.211 (cl.143.221).

9. With limited exceptions not relevant in the present case, cl.143.213 requires that at the time of application, the applicant must satisfy the balance of family test as defined at r.1.05. 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).

10. ‘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). Relevant to this matter, a step-child is defined as 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 a person who is not the child of the parent, but is the child of the parent’s former spouse or former de facto partner, and who has not turned 18, and in relation to whom the parent has 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 guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country (r.1.03).

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issues in the present case are whether the visa applicant is the parent of a person (the child) who is a settled Australian citizen or a settled Australian permanent resident or a settled eligible New Zealand citizen (cl.143.211(1)(a); that the visa applicant satisfies the balance of family test, defined at r.1.05 of the Regulations (cl.143.213); and that the time of decision, the visa applicant continues to meet the requirements of cl.143.211 (cl.143.221).

    Criteria to be satisfied at time of application

12. The visa applicant provided the Tribunal with documentation attesting that she is the parent of the review applicant (the child). The review applicant was born in Mauritius on 22 April 1980 and became a citizen of Australia on 27 August 2009. Accordingly, the Tribunal finds that the visa applicant satisfies cl.143.211(1)(a)(i).

    Is the ‘balance of family test’ satisfied?

13. The Tribunal finds no evidence that the visa applicant is the holder of a Subclass 173 Contributory Parent (Temporary) visas or a substituted Subclass 600 visa. The visa applicant must therefore satisfy the balance of family test.

14. The applicants provided the Tribunal with a copy of the delegate’s decision. The decision record indicates that the visa applicant stated in her initial Application for a parent to migrate to Australia (Form 47PA) that she was married to her husband, born on 29 June 1946 and a citizen of Mauritius; that there are two children of this relationship, being the visa applicant’s son (the review applicant) described at [12], and the visa applicant’s daughter born on 14 November 1982 and a citizen of Mauritius presently residing in Australia; and that the visa applicant has a step-son born on 17 December 1977, being the child of her husband’s previous marriage and a citizen of Mauritius.

15. In the application form, the visa applicant did not indicate that she was no longer in a spousal relationship with her husband. However, at (q24) of the form, the visa applicant indicated that her husband would not be migrating with her and in a submission lodged by her previous registered migration agent in support of the application, the visa applicant’s husband was described as her former spouse.

16. On 25 October 2018, the Tribunal received submissions and supporting documentation from the applicants’ newly appointed registered migration agent. This documentation included a Notification of incorrect answer(s) (Form 1023) dated 24 October 2018 which states at (q13 (1) and (2)):

    Information which was incorrect: Form 47PA, Question 23 was answered as “married” by the Migration Agent acting at the time. This was incorrect.

    Correct details: Whilst still legally married, the visa applicant was no longer in a married relationship with her legal husband, as they had separated in July 2011. Accordingly, this should have been answered as “separated”.

    Information which was incorrect: Form 47P, Part F and Question 59 was completed with the details of the visa applicant’s former not current spouse.

    Correct details: Whilst still legally married, the visa applicant was no longer in a relationship with her husband as they had separated in July 2011. Accordingly, this part should have been left blank, as the visa applicant did not have a current partner at the time of application.

17. The visa applicant provided an explanation for these errors at (q14) of the form:

    Why was incorrect information provided? As described above, these documents were completed by the visa applicant’s Migration Agent. Though this completion was based on the visa applicant’s instructions, it is apparent that there was a breakdown in communication likely caused by a language barrier, where the visa applicant’s English is limited. In signing this Form containing incorrect information, the visa applicant was guided by the Migration Agent who incorrectly interpreted the nature of the visa applicant’s marriage and separation. This is supported by subsequent documents provided which evidence the separation occurring in July 2011.

18. In support of the visa applicant’s claim that her marriage to her former husband concluded in July 2011, the Tribunal was provided with a Power of Attorney dated 14 October 2014 wherein the visa applicant divested to her former husband full power and authority to discharge any financial and property matters arising from her marriage. In oral evidence, the visa applicant stated that she had done this in order to discharge any financial or other obligations to her former husband subsequent to their separation in July 2011.

19. The Tribunal was also provided with a Statutory Declaration from the visa applicant’s former spouse dated 9 September 2015, stating:

    “I hereby declare that I was married to [the visa applicant]… on the 29^th June 1979. [The visa applicant] left Mauritius for Australia in July 2011. I got married to [the gentleman’s now wife]… on the 5.2.2012. I aver that I am not interested in reconciliation with [the visa applicant]. We have not been in a relationship since her departure to Australia. We have been living in two different countries. Although I had a multiple entry visitor’s visa for Australia for 4 years I have not made use of it as our marriage, I consider, had ended with no possible reconciliation. I have already taken steps to start divorce proceedings.”

20. The Tribunal was also provided with a copy of a petition for divorce dated 28 March 2016 lodged with the Supreme Court of Mauritius wherein the visa applicant’s former husband states:

    “Your Petitioner [the visa applicant’s former husband] and the Respondent [the visa applicant] are both Mauritian citizens and Your Petitioner is domiciled in Mauritius and the Respondent is domiciled in Australia. Your Petitioner and the Respondent contracted civil marriage… on the 29^th June 1979… Your Petitioner and the Respondent lived more or less happily up to July 2011 after the said marriage. Your Petitioner avers that in July 2011, Respondent left Mauritius for Australia to go and stay as student guardian for the disabled daughter [the visa applicant’s daughter]. Your Petitioner avers that it was agreed between the Parties that Respondent would be returning to Mauritius after the studies of the daughter... Your Petitioner avers that as soon as Respondent arrived in Australia she informed Your Petitioner that she will never resume conjugal life with Your Petitioner. Your Petitioner avers that on several occasions he requested the Respondent to return to Mauritius and resume conjugal life with Your Petitioner but Respondent categorically refused. Your Petitioner avers that since then the parties are living separately… Your Petitioner avers that the marriage has irretrievably broken down and that conjugal life is no more possible.”

21. The Tribunal was also provided with further legal documentation from the Supreme Court of Mauritius dated 14 December 2016 ordering that the provisional decree of divorce between the visa applicant and her former husband granted on 13 September 2016 be made permanent as of the date of the order. The Tribunal also received a further Statutory Declaration from the visa applicant’s former husband dated 7 September 2018 affirming that the couple separated in July 2011 at the time of the visa applicant’s departure for Australia; that the divorce proceedings were finalised on 14 December 2016; and that he is now living with another woman.

22. In oral evidence, the visa applicant stated that her relationship with her former husband had not been “more or less” happy as he characterised it in his petition for divorce. The visa applicant stated that she had experienced family violence over the course of the marriage. The review applicant confirmed the visa applicant’s characterisation of his parents’ marriage, noting that he has had little contact with his father since his parents separated and his mother travelled to Australia in July 2011.

23. On consideration of the documentation and oral evidence provided by the applicants, the Tribunal finds that the visa applicant and her former husband are divorced and have been separated since July 2011.

24. Relevant to the consideration of the balance of family test in this matter, the Tribunal notes that ‘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). A step-child is defined as 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 a person who is not the child of the parent but is the child of the parent’s former spouse or former de facto partner, and who has not turned 18, and in relation to whom the parent has 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 guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country (r.1.03).

25. On the basis of the evidence provided regarding the visa applicant’s separation from her former husband in July 2011, the Tribunal finds that the visa applicant’s step-son was not the child of her current spouse at the time of application on 29 August 2013. It follows that the visa applicant’s step-son is the child of her former spouse. The Tribunal finds also that the visa applicant’s step-son has turned 18, having been born on 17 December 1977. Accordingly, the Tribunal finds that the visa applicant’s step-son is not relevant to consideration of the balance of family test in this matter as adult step-children of an applicant’s former spouse are not children of the applicant as defined at r.1.03.

26. The Tribunal therefore finds that the visa applicant has two children: her son (the review applicant) being an “eligible child” for the purposes of this application; and her daughter, being an “ineligible child” for the purposes of this application.

27. As stated at [10], cl.143.213 requires at the time of the application the applicant must satisfy the balance of family test, as defined in r.1.05. 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).

28. In this case, the Tribunal finds that the visa applicant satisfies the balance of family test as the number of her eligible children (one) is equal to the total number of ineligible children (one). Accordingly, the visa applicant satisfies the requirements of r.1.05(2C) and cl.143.213 of the Regulations.

    Criteria to be satisfied at time of application

29. The Tribunal finds that the visa applicant continues to meet the requirements set out at cl.143.211 of the Regulations. Hence, the Tribunal finds that the visa applicant satisfies the requirements of cl.143.221 of the Regulations.

    Conclusion

30. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

31. The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 143 visa:

    ·     cl.143.211 of Schedule 2 to the Regulations;

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

    ·     cl.143.221 of Schedule 2 to the Regulations.

    Shane Lucas
    Member