Martinek (Migration)

[2018] AATA 2326

Martinek (Migration) [2018] AATA 2326 (31 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Beatrice Martinek

CASE NUMBER:  1607063

DIBP REFERENCE(S):  CLF2016/1242

MEMBER:Kira Raif

DATE:31 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 31 May 2018 at 4:05pm

CATCHWORDS
Migration – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – Balance of family test – Number of eligible children – Only 1 child in Australia – Ministerial intervention – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, rr 1.03, 1.04, Schedule 2 cl 804.213, 804.214

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 and Border Protection 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 visa applicant is a national of the US born in May 1925. She applied for the visa on 31 December 2015. The delegate refused to grant the visa on 3 May 2016 on the basis that cl.804.213 was not met because the visa applicant did not meet the balance of family test. The applicant seeks review of the delegate’s decision.

3. The applicant’s daughter gave oral evidence on behalf of the applicant on 31 May 2018. 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 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.

5. 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.

6. 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).

7. ‘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?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant declared on the application form six living children. Her daughter resides in Australia and the remaining children are permanent residents of the US.

9. There are a number of statements that were provided with the primary application and to the Tribunal concerning the sponsor’s capacity and willingness to take care of her mother and financial records. The sponsor states that she is the only one able to take care of her mother. The sponsor told the Tribunal in oral evidence that the other children neglected their mother and would not care for her. The Tribunal acknowledges that evidence and accepts it for the purpose of the present application. However, the Tribunal finds that only one of the applicant’s children is an eligible child. There is no evidence that the five children living in the US have been removed by court orders, by adoption or by operation of law. There is no evidence that any of the children are resident in a country where they suffer persecution or abuse of human rights or that they are resident in a refugee camp operated by the UNHCR and are registered as refugees. The Tribunal acknowledges the review applicant’s evidence that her son has passed away since the application was made but this does not alter the balance of family.

10. The Tribunal finds that the visa applicant has five living children and only one of these children was resident in Australia and was a permanent resident or a citizen of Australia at the time of the application. The Tribunal is not satisfied the number of eligible children is greater than or equal to the number of ineligible children. The visa applicant does not meet r. 1.05(2C) and the balance of family test for the purpose of cl. 804.214. The Tribunal acknowledges the various other submissions to the delegate and the Tribunal but these do not assist the applicant in meeting the balance of family test.

11. The applicant and her family provided a number of statements to the Tribunal, including statements of support from third parties. The sponsor’s evidence to the Tribunal is that the children in the US will not take care of the mother, would not contact the family and would only take advantage of her. The Tribunal acknowledges that evidence but has no discretion on the matter. Having found that the applicant does not meet one of the requirements for visa grant, the Tribunal must affirm the decision under review.

12. Having regard to the applicant’s circumstances, in particular the applicant’s advanced age, her poor health and incapacity and stated lack of support in her own country, and having considered the ministerial guidelines relating to the Minister’s discretionary power under s.351, set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal considers there are compassionate circumstances in this case. This case should be referred to the Department to be brought to the Minister’s attention.

    Conclusion

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

    DECISION

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

    Kira Raif
    Senior Member