Cooper (Migration)

[2018] AATA 2995

Cooper (Migration) [2018] AATA 2995 (9 July 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Yulia Cooper

VISA APPLICANTS:  Mr Nikolay Petrenko
Mrs Elena Petrenko

CASE NUMBER:  1610600

DIBP REFERENCE(S):  2014/085711

MEMBER:Kira Raif

DATE:9 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas

Statement made on 09 July 2018 at 1:23pm

CATCHWORDS
Migration – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – Balance of family test – Close relationship between sponsor and visa applicant – Child from previous relationship – Ineligible children – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), rr 1.03, 1.05, Schedule 2 cls 143.213, 143.321

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 11 July 2016 to refuse to grant the visa applicants Contributory Parent (Migrant) (Class CA) Subclass 143 visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of Russia. They applied for the visas on 9 April 2014. The delegate refused to grant the visa on the basis that the applicant did not meet the balance of family test. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 25 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants and the review applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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 Regulations. The criteria for a Subclass 143 visa are set out in Part 143 of Schedule 2 to the Regulations.

5. With limited exceptions not relevant in the present case, 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); or greater than the greatest number of ineligible children who are usually resident in a particular overseas country: r.1.05(2D).

6. ‘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).

   Is the ‘balance of family test’ satisfied?

7. There is no evidence that the visa applicants are holders of the Subclass 173 Contributory Parent (Temporary) visas or the substituted Subclass 600 visas. They must satisfy the balance of family test.

8. The review applicant provided to the Tribunal a copy of the primary decision. It indicates that the visa applicants stated on the application form that they had two children from their marriage, including the daughter who is an Australian resident and the sponsor in the present application, and a son who resides overseas.  However, the information indicates that Mr Petrenko was married previously and has another child from that relationship.

9. In their submissions to the delegate and various written statements to the Tribunal the visa applicants state that Mr Petrenko has had no contact with his son from the previous marriage for over thirty years and that the son’s whereabouts are unknown. Their evidence is that they do not consider this child to be a member of the family unit. The review applicant’s spouse and brother also provided statements to the Tribunal outlining the close bond between the sponsor and her parents and the sponsor’s reliance on her parents, particularly with respect to the children. The Tribunal accepts that evidence. The Tribunal accepts that the sponsor and the visa applicants have a close relationship and that the visa applicants support their daughter and help her with the children and domestic responsibilities. The Tribunal is prepared to accept that the visa applicants have little or no contact with Mr Petrenko’s son from the previous relationship. However, the Tribunal is mindful that r.1.05 is not concerned with the nature of the relationship or the frequency of contact between a parent and a child.

10. There is no evidence that this child from Mr Petrenko’s previous relationship is not alive or that he had been removed by court order, adoption or operation of law. There is also no evidence before the Tribunal that this son is resident in a country where he suffers persecution or abuse of human rights and that is not possible to reunite the child and the parent in another country. There is nothing to suggest the child is resident in a refugee camp or is registered as a refugee. There is no evidence that he resides in Australia and Mr Petrenko’s evidence to the Tribunal is that the last contact he had with his ex-wife was before she and their son migrated to Israel.

11. The Tribunal is prepared to accept that the first named applicant has not had any contact with his son from the first marriage for many years. However, the Tribunal finds that the visa applicant’s son from the previous marriage is an ‘ineligible child’. The mere fact that the visa applicants do not consider this child to be a member of the family unit or have had no contact with him, does not affect this assessment. Neither does the Tribunal consider that the presumption of death applies in relation to the son, given the parties’ evidence that Mr Petrenko divorced his former spouse and had nothing to do with that family for many years. In such circumstances, any contact between Mr Petrenko and his son may not be expected. The review applicant provided to the Tribunal a copy of another Tribunal decision relating to adoption. It is unclear how the circumstances of that case are relevant here.

12. The Tribunal acknowledges the various statements that have been provided to the Tribunal outlining the visa applicants’ settlement in Australia and their close relationship with the sponsor and the support they provide to the sponsor. The Tribunal accepts that evidence but these matters also do not affect the existence of another biological child of the visa applicant.

13. The Tribunal finds that the visa applicant has two ineligible children, who reside overseas, and one child who is an eligible child and who resides in Australia. The Tribunal is not satisfied the visa applicants meet the balance of family test in r. 1.05 for the purpose of cl. 143.213. The second named applicant does not meet cl. 143.321.

14. The review applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. Following the hearing, the visa applicants provided to the Tribunal a number of declarations and other documents outlining the family circumstances. These are consistent with the evidence previously provided to the Tribunal and noted above. The Tribunal has considered the applicants’ case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    Conclusion

15. For the reasons above, the Tribunal finds that the applicants do not meet the criteria for a Subclass 143 visa.

    DECISION

16. The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas.

    Kira Raif
    Senior Member