Martin (Migration)

[2021] AATA 5150

Martin (Migration) [2021] AATA 5150 (16 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Susan Irene Martin

CASE NUMBER:  1913143

HOME AFFAIRS REFERENCE(S):          CLF2015/51966

MEMBER:Steven Griffiths

DATE:16 December 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for an Aged Parent (Residence) (Class BP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 804 (Aged Parent) visa:

·cl 804.214 of Schedule 2 to the Regulations; and

·cl 804.221(a) of Schedule 2 to the Regulations.

Statement made on 16 December 2021 at 11:48am

CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – balance of family assessment – meeting assessment criteria during review period, but not at time of visa application – not aged parent at time of visa application but one at time of review hearing – husband died between delegate’s decision and review hearing – no contact with husband’s two children by previous marriage – children of deceased spouse not included in definition of step-children – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05, Schedule 2, cls 804.214, 804.221

CASE
Berenguel v MIAC [2010] HCA 8

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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, Mrs. Susan Irene Martin, applied for the visa on 21 August 2015 on the basis of her daughter, Mrs. Nicola Jane Cann, being the sponsor. 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.

3. The delegate refused to grant the visa on 24 May 2019 on the basis that cl 804.214 was not met because the applicant, and then fellow visa applicant but prior to decision deceased husband, did not meet the Balance of Family assessment.

4. The parties were assisted by their registered migration agent, Mr. Matthew Thompson, of M.P. Thompson & Associates.  

5. The applicant appeared before the Tribunal on 16 December 2021 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the sponsor, her husband and two daughters.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department of Home Affairs, the Tribunal file and oral evidence from the Tribunal hearing.

   BACKGROUND OF THE EVIDENCE

8. Mrs. Martin was born in the United Kingdom in 1953.  Her parents are deceased and she has 4 brothers and a sister, all living in the United Kingdom. She was previously married 1970 to 1989, with a daughter, born 1970, who is the sponsor. She has travelled, with her deceased husband who she had married in 1991, to Australia eleven times since 19/5/05, last arriving on 24/9/14, to spend time with her daughter and family. She has been on a WA-010 Bridging Visa since 21/8/15.

9. Deceased visa applicant Mr. Peter John Martin was born in the United Kingdom in 1945. His parents are deceased and he has 2 brothers both living in the United Kingdom. He was previously married twice, from 1968 to 1972 and from 1976 to 1987, with a daughter and son, born 1969 & 1971, from the first marriage, and was estranged from the children for 30 years prior. He married the applicant in 1991 and died on 6^th December 2018.

10. Mrs. Cann was born in the United Kingdom in 1970.  She is the daughter of the visa applicant, from the first marriage of the applicant, and has no siblings. She was previously married, with a daughter, born 1990, before divorcing. She married in September 1994 and with her husband, born 1968, has a daughter, born 1995. With her husband and 2 daughters they moved to Australia on 16/1/05 and became Australian citizens by grant on 26/1/08.

    INFORMATION TO THE TRIBUNAL

11. Since the Department of Immigration made its decision, the applicant has provided further information to the Tribunal including:-

    Review application, 27/5/19

    Hearing Response

    Migration Agent submission, 9/12/21

    Applicant Statutory Declaration, 6/12/21

    Sponsor Statutory Declaration, 6/12/21

    Support reference by Andrew Cann, son-in-law of applicant, 5/12/21

    Support reference by Chelsea Badgery, granddaughter of applicant, 5/12/21

    Support reference by Shelby Cann, granddaughter of applicant, 5/12/21

    Support reference by Christine Knigate, friend of applicant, 4/12/21

    Support reference by Laura Oliver, friend of applicant, 4/12/21

    Australian citizenship grant to sponsor, her husband and 2 daughters, 25/1/08

    Birth certificates of the 2 great granddaughters of the applicant, born 2017 & 2020

    Trinity Medical Centre, details on health issues of the applicant, 4/12/21

    Sjogren’ Specialised Clinic, Queen Elizabeth Hospital, details of the health issues of the sponsor, 8/12/21

    Trinity Medical Centre, details on the health issues of the sponsor, 2/8/21

    Adelaide Oncology & Haematology, details on health issues of the son-in-law of the applicant, 6/12/21

    Submission by Mr. Shannon Claridge, partner of granddaughter of applicant, not dated

    Submission by Mrs. Dawn Claridge, mother of partner of granddaughter of applicant, not dated.

    Basis of the visa application

12. The visa application was made on the basis that the applicant is the parent of Mrs. Nicola Jane Cann (‘the child’). The evidence before the Tribunal is that the sponsor, Mrs. Nicola Jane Cann, is the sole biological child of the applicant.

13. The Tribunal notes that the visa application was lodged on the basis of including Mr. Peter John Martin, who had been married to Mrs. Susan Irene Martin since 1991, while during the assessment period of the application Mr. Martin was diagnosed with cancer and passed on 6 December 2018. 

    Consideration of criteria for time of application and time of decision

14. The Tribunal has noted the ruling of the High Court of Australia in the case of Berenguel v MIAC, decision of 5 March 2010, where the issue of time of application requirements, and where these requirements are met during the review period of the visa application, and the implication of meeting the assessment criteria then but not at the time of application.

15. The Tribunal has noted the ruling of the High Court of Australia in this case includes “The heading “Criteria to be satisfied at time of application may inform the construction of the criteria thereunder, but those criteria do not speak exclusively to satisfaction at the time of application”.

16. With this ruling of the High Court, in this case the Tribunal has determined that with the death of the male visa applicant, during the review period by the Department and prior to the refusal decision of the delegate, and with the female visa applicant being the sole review applicant, that consideration is able to be provided to the migration criteria on the basis of time of decision criteria for the review applicant solely.

    Is the applicant the aged parent of settled child?

17. Except for certain substituted Subclass 676 or 600 visa holders, cl 804.212(1) and cl 804.221 require that at the time of application and decision the applicant is an ‘aged parent’ of the child who must be a settled Australian citizen, permanent resident or eligible New Zealand citizen. In this case the applicant did not hold a substituted Subclass 676 or 600 visa at the relevant time.

18. The term ‘aged parent’ is defined in reg 1.03 of the Regulations as a parent who is old enough to be granted an age pension under the Social Security Act 1991. The term ‘settled’ is also defined in reg 1.03 and requires that the child be lawfully resident in Australia for a reasonable period.

19. The Tribunal accepts the documented evidence of the review applicant date of birth being [1953], noting that at the time of the visa application she was 61, while her now deceased husband was 73 years old.

20. The Tribunal accepts the documented evidence that the review applicant turned 65 years of age approximately 3 months prior to the death of her husband in December 2018 and is 68 years old at the time of this decision. 

21. The Tribunal finds that the applicant was not the aged parent of an eligible child at the time of the visa application and therefore did not satisfy cl 804.212(1).

22. The Tribunal finds that the applicant was the aged parent of an eligible child at the time of the review application being lodged and is at the time of this decision and therefore satisfies cl 804.221.

    Is the ‘balance of family test’ satisfied?

23. 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).

24. 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).

25. ‘Children’ for these purposes includes all natural, adopted and stepchildren (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).

26. The Tribunal notes the visa application of the review applicant and her now deceased husband included the details of the 2 children, born 1969 & 1971 and not residing in Australia, of the deceased husband, and the daughter, born 1970 and residing in Australia, of the review applicant, with the delegate determining that the applicants did not meet the Balance of Family assessment.

27. The Tribunal accepts the oral evidence of the applicant that she, who had been in a relationship with her deceased husband from 1989 and married in 1991, had not met or spoken to the children of her husband.

28. The Tribunal accepts the oral evidence of the applicant that she is not aware, during the 29 years she was in a relationship with or married to her deceased husband, that he had spoken to or met his children.

29. The Tribunal accepts the oral evidence of the applicant that the Last Will and Testament of the deceased husband of the review applicant left no provision for any bequest to his children, born 1969 & 1971.

30. The Tribunal accepts the oral evidence of the applicant that she has not been in contact with the children of her deceased husband since his death in December 2018.

31. The Tribunal accepts the oral evidence of the applicant that since the death of her deceased husband in December 2018 his children have not made contact with her.

32. The Tribunal determines that with the death of the male visa applicant in December 2018, and the review applicant being the sole visa applicant for review, the children, born in 1969 & 1971, of the deceased husband do not meet the definition of stepchildren, as their father is not the current husband of the review applicant but her deceased husband. 

33. The Tribunal determines that with the death of the deceased husband of the review applicant and decision made on his children, relevant to the Balance of Family assessment, the review applicant is now to be considered against her sole child, her daughter, who as an Australian citizen by grant is the sponsor of the visa application.

34. On the basis of the findings above, the applicant meets the balance of family test in reg 1.05 and therefore satisfies cl 804.214.

35. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 804 visa.

    DECISION

36. The Tribunal remits the application for an Aged Parent (Residence) (Class BP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 804 (Aged Parent) visa:

    ·cl 804.214 of Schedule 2 to the Regulations; and

    ·cl 804.221(a) of Schedule 2 to the Regulations.

    Steven Griffiths
    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.