MCKEOWN (Migration)

[2019] AATA 3723

MCKEOWN (Migration) [2019] AATA 3723 (18 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Peter David MCKEOWN

VISA APPLICANT:  Mrs Katherine Gail MCKEOWN

CASE NUMBER:  1905992

DIBP REFERENCE(S):  2008/066634 OSF2008/066634

MEMBER:Linda Holub

DATE:18 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Parent (Migrant) (Class AX) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 103 (Parent) visa:

·cl.103.226 of Schedule 2 to the Regulations.

Statement made on 18 June 2019 at 4:59pm

CATCHWORDS

MIGRATION – Parent (Migrant) (Class AX) – Subclass 103 (Parent) – letter of assurance – evidence provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 103.226

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 to refuse to grant the visa applicant a Parent (Migrant) (Class AX) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 18 November 2008. The delegate refused to grant the visa on 21 January 2019 on the basis that cl.103.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not satisfied because an assurance of support, accepted by the Secretary, Department of Family and Community Services, as required by the criterion was not provided. .

RELEVANT LAW

1. At the time the visa application was lodged, the Parent (Migrant) (Class AX) visa contained Subclass 103 (Parent): Item 1124 of Schedule 1 to the Regulations.

2. The Parent (Migrant) (Class AX) visa is a permanent visa for parents of settled Australian citizens, Australian permanent residents and eligible New Zealand citizens who satisfy the ‘balance of family’ test.

3. The criteria for a Subclass 103 visa are set out in Part 103 of Schedule 2 to the Regulations.

4. The primary criteria require that at the time of application, the visa applicant be a ‘parent’ of a settled Australian citizen or permanent resident, or a settled eligible New Zealand citizen: cl.103.211. Under r.1.03 of the Regulations, ‘parent’ includes an adoptive or step parent and ‘step-child’ in relation to a parent is a child who is the natural or adopted child of a person’s current or, in certain circumstances, former spouse.

5. The Regulations also require that the visa applicant be sponsored at the time of application by, if the child has turned 18, the child or the child’s cohabiting spouse (if that person has turned 18) or, if the child has not turned 18, by either the child’s cohabiting spouse (if the spouse has turned 18) or a relative or guardian of the child or the child’s spouse who has turned 18 or a community organisation: cl.103.212.

6. The visa applicant must also satisfy the ‘balance of family’ test: cl.103.213. The ‘balance of family test’ is defined at r.1.05 of the Regulations as follows:

   1.05Balance 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, adopted child or step child of:

   (i)the parent; or

   (ii)a spouse of the parent; or

   (iii)a former spouse of the parent, if the child was born or adopted:

   (A)before the parent became the spouse of the former spouse; or

   (B)while the parent was the spouse of the former spouse; and

   (b)if the whereabouts of a child of the parent are unknown, the child is taken to be resident in the usual country of residence of the parent.

   (2)A parent satisfies the balance of family test if:

   (a)each of the children of the parent is either:

   (i)lawfully and permanently resident in Australia; or

   (ii)a person who is:

   (A)an eligible New Zealand citizen; and

   (B)usually resident in Australia; or

   (b)the number of children of the parent who are lawfully and permanently resident in Australia or are eligible New Zealand citizens usually resident in Australia is:

   (i)greater than, or equal to, the total number of children of the parent who are resident overseas; or

   (ii)greater than the greatest number of children of the parent who are resident in any single overseas country.

   (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 is resident in a refugee camp operated by:

   (i)the United Nations High Commissioner for Refugees; or

   (ii)the government of Hong Kong;

   and is registered by the Commissioner as a refugee; or

   (d)if:

   (i)the child is a step child of the parent; and

   (ii)the child had turned 18 at the time at which the parent became the spouse of the child’s other parent;

   and one or more of the following subparagraphs applies:

   (iii)the other parent is deceased; or

   (iv)the parent is permanently separated from the other parent; or

   (v)the parent is divorced from the other parent.

1. At the time of decision, the primary criteria to be satisfied are that:

   ·the visa applicant continues to satisfy the criterion in cl.103.211: cl.103.221

   ·a sponsorship of the kind mentioned in cl.103.212 has been approved by the Minister and is in force (whether or not the sponsor was the sponsor at time of application): cl.103.222

   ·an assurance of support has been accepted by the Department of Family and Community Services: cl.103.226

   ·the visa applicant and family members satisfy certain public interest criteria: cl.103.224, 103.225, 103.227 and 103.228

   ·if the applicant has previously made a valid application for another parent visa, that application is not ‘outstanding’: cl.103.229

   ·in the case of applications made on or after 1 July 2005, the visa applicant satisfies certain passport requirements: cl.103.230.

10) Part 103 of Schedule 2 also contains secondary criteria that must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.

11) The issue in the present case is whether an assurance of support has been accepted by the Secretary of the Department of Family and Community Services.

CLAIMS AND EVIDENCE

12) The Department’s Decision Record states that on 31 October 2017 a letter was sent to the authorised representative requesting further documents including an Assurance of Support (AOS) to satisfy clause 103.226. At the date of the Departments decision on 21 January 2019 the department had not received the information requested regarding the Assurance of Support.

13) Following the review application being lodged with the Administrative Appeals Tribunal, the Tribunal wrote to the applicant on 15 March 2019 requesting that he provide the required Assurance of Support.

14) The applicant advised the Tribunal on 28 March 2019 that he was in the process of re-applying for the Assurance of Support.  On 3 June 2019 the applicant emailed the Tribunal and provided a copy of the Department of Human Services, Centrelink document.  It states that the Department of Home Affairs has been notified that the application has been accepted so it can now proceed with the application. 

FINDINGS AND REASONS

15) The Tribunal finds that the review applicant has now provided evidence that the required assurance of support has been accepted by the Department of Human Services, Centrelink and the Tribunal is satisfied that this Commonwealth agency has done so on behalf of the Secretary of the Department of Family and Community Services.

CONCLUSIONS

16) For the reasons given above the Tribunal finds the visa applicant satisfies the requirements of cl.103.226.

DECISION

17) The Tribunal remits the application for Parent (Migrant) (Class AX) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 103 (Parent) visa:

·cl.103.226 of Schedule 2 to the Regulations; and

·cl.103.226 of Schedule 2 to the Regulations.

Linda Holub
Member