Chong (Migration)

[2024] AATA 3330

Chong (Migration) [2024] AATA 3330 (2 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Koon Min Chong

CASE NUMBER:  2014261

HOME AFFAIRS REFERENCE(S):          CLF2018/361226

MEMBER:Margie Bourke

DATE:2 September 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 02 September 2024 at 12:55pm

CATCHWORDS

MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Parent) – balance of family test – dependence on an Australian relative – two children not permanent residents at time of application – referral for Ministerial Intervention – compassionate circumstances – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 5, 65, 351
Migration Regulations 1994, Schedule 2, cls 804.214; rr 1.03, 1.05, 1.14

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

2. The applicant applied for the visa on 21 November 2018. 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 (Cth) (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, which requires if the applicant is not the holder of a substituted subclass 600 visa, that the applicant satisfies the balance of family test.

3. The delegate refused to grant the visa on 21 September 2020 on the basis that cl.804.214 was not met because the delegate found the applicant did not satisfy the balance of family test at the time of application.

4. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, informal, economical and quick. The Tribunal had regard to the circumstances of the review applicant and the nature of the review. The Tribunal was of the view that if the hearing was conducted by video connection, the review applicant would have the opportunity to give evidence and present arguments, and the Tribunal would be able to conduct a fair and effective hearing and to properly assess the evidence before it. The review did not involve an extensive amount of paperwork or documents to be put to the review applicant during the course of the hearing. For all the above reasons the Tribunal invited the review applicant to attend a hearing to be conducted by way of video connection.

5. The applicant appeared before the Tribunal with his daughter, the sponsor by video on 2 September 2024 to give evidence and present arguments. Four of the applicant’s five children attended the hearing, although the Tribunal was unable to receive oral evidence from one of the daughters as her audio was not working. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the applicant is the parent of Yea Chieng White (‘the child’). The evidence before the Tribunal is that the sponsor, Yea Chieng White, is the child of the applicant.

   Is the ‘balance of family test’ satisfied?

8. 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 reg 1.05 (see attachment to this decision).

9. 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: reg 1.05(2C); or greater than the greatest number of ineligible children who are usually resident in a particular overseas country: reg 1.05(2D).

10. ‘Children’ for these purposes includes all natural, adopted and step-children (as defined in reg 1.03) of either the parent or the parent’s current spouse or current de facto partner: reg 1.05(1)(a). However, no account is to be taken of certain children as specified in reg 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: reg 1.05(1)(b).

11. The Tribunal took evidence from the sponsor, Yea Chieng White who attended the hearing with her father, the applicant. The applicant is aged 82 years, and due to his age, the Tribunal considered it appropriate that his daughter speak on his behalf in the hearing.

12. The applicant had provided evidence with the application for the visa that was lodged on 21 November 2018 that he had five children. At the time of application the applicant advised the Department that his daughter, the sponsor, was the holder of a permanent resident spouse visa and he had another daughter, YHC who was the holder of a subclass 461 temporary New Zealand citizen visa and another daughter SFC who is the holder of a special category visa (not a protected special category visa) and who both resided in Australia. The applicant advised the Department that he had two sons, one a New Zealand citizen residing in New Zealand, and one a Malaysian citizen residing in Malaysia.

13. There is no evidence that reg 1.05(3) applies to any of the children of the applicant.

14. The purposes of the balance of family test, reg 1.05(2) defines an eligible child as an Australian citizen, or 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 defined as an ineligible child.

15. The three daughters and the Malaysian citizen son all attended the hearing. The applicant’s three daughters, the applicant and the applicant’s son confirmed that the information provided the time of application was correct.

16. The applicant, through his daughter the sponsor, Yea Chieng White, provided written submissions and oral evidence that they had understood the information on the Department website that the applicant would pass the balance of family test because his three daughters were all residing legally and permanently in Australia at the time of application. The submission to the Tribunal was that the daughter who was the holder of the special category visa had resided in Australia since 2006. The daughter who was the holder of the subclass 461 New Zealand citizen temporary visa was in a permanent married relationship, now exceeding 20 years. The sponsor herself was the holder of an Australian permanent resident partner visa.

17. The applicant, through his daughter the sponsor, submitted that he was an elderly widower, and dependent on his daughter. The applicant has resided in Australia since June 2017 and first arrived here in July 2015. The evidence before the Tribunal is that the applicant is too old and frail to reside without the support and care of his daughter, the sponsor.

18. The applicant provided evidence that the sponsor is now an Australian citizen. The applicant provided evidence that the daughter who was the previous holder of the special category visa, SFC, was granted Australian citizenship in April 2024. The applicant provided evidence that the daughter who was the previous holder of the subclass 461 temporary visa, YHC, was granted a permanent resident visa on 31 August 2019. The Tribunal accepts that at the time of decision the applicant meets the balance of family test. The Tribunal accepts that the number of eligible children is greater than or equal to the number of ineligible children at the time of decision and therefore the applicant would meet the balance of family test set out in reg.1.05(2C).

19. The Tribunal discussed with the applicant and his four children who attended the hearing, that the decision of the Department in the decision record dated 21 September 2020, appeared to make the right assessment of whether the applicant met the balance of family test at the time of application. The Tribunal discussed with the applicant and his four children, that at the time of application the evidence they had provided was that the sponsor Yea Chieng White was the holder of a permanent resident visa and was usually resident in Australia, but that the other two daughters were not Australian citizens or the holders of Australian permanent resident visas, or eligible New Zealand citizens usually resident in Australia.

20. The Tribunal accepts the information provided to the Department and to the Tribunal in relation to the residency and visa status of the five children of the applicant is correct. The Tribunal accepts the evidence in the hearing confirmed that the information provided was correct.

21. The Tribunal is satisfied that the applicant did not have an equal number or a greater number of eligible children residing in Australia at the time of application to satisfy the balance of family test. The Tribunal is satisfied based on the information provided by the applicant and his children that at the time of application, the number of eligible children is less than the number of ineligible children and therefore the applicant does not satisfy the balance of family test as set out in reg 1.05(2C).

22. Therefore the Tribunal is not satisfied that at the time of application the applicant satisfied the balance of family test for the purposes of meeting the requirements of cl.804.214.

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

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

    DECISION

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

    Ministerial Intervention

26. The Tribunal is of the view that strong compassionate circumstances regarding the age of the review applicant exist for recommending this matter to the Minister for the exercise of his discretion pursuant to s.351 of the Act. The review applicant is 82 years of age, and his wife died eight years ago. The review applicant is dependent upon his daughters for his care and support. The Tribunal also draws attention to the potential serious and irreversible harm to Australian citizens and an Australian permanent resident (the sponsor and her sisters), if their father was not granted the visa and was required to depart the country. The Tribunal notes that the applicant relied on information from the Department’s website at the time of application. The Tribunal notes that the applicant would meet the requirements of the balance of family test at the time of this decision.

    Margie Bourke
    Senior 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.