Odion (Migration)

[2022] AATA 1803

Odion (Migration) [2022] AATA 1803 (15 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Hannah Ewenifo Odion

CASE NUMBER:  2011665

HOME AFFAIRS REFERENCE(S):          BCC2016/1826569

MEMBER:David Crawshay

DATE:15 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Contributory Parent (Migrant) (Class CA) visa.

Statement made on 15 March 2022 at 4:45pm

CATCHWORDS

MIGRATION – Contributory Parent (Class CA) visa – Subclass 143 (Migrant) visa – applicant did not meet the balance of family test – number of children who are eligible is not more than or equal to the number of ineligible children – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.05, Schedule 2, cl 143.213

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 on 2 July 2020 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) Subclass 143 visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 20 May 2016. The delegate refused to grant the visa on the basis that the applicant did not meet the balance of family test set out in r.1.05 of the Regulations.

3. The applicant appeared before the Tribunal on 15 March 2022 to give evidence and present arguments. The Tribunal also heard from the applicant’s children, Ms Anne Odion, Mr Patrick Odion, Mr Francis Odion and Mr Omogbai Odion. The hearing was conducted remotely via Microsoft Teams video.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. At the time of application, the applicant was not the holder of a Subclass 173 (Contributory Parent (Temporary)) visa and was not the holder of a substituted 600 visa. Therefore, she is required to satisfy the “balance of family” test in r.1.05 of the Regulations.

6. Regulation 1.05 of the Regulations relevantly states as follows:

   (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 the 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.

   …

   [emphasis in original]

7. The evidence in front of the Tribunal, including evidence contained within an undated document titled “FAMILY TREE” that was sent to the Department is that the applicant has seven children, whose statuses at the time of application in May 2016 were as follows:

   Omogbai Ehimikhuae Odion             -          Australian Temporary Resident

   Anne Ataikpo Abumere Odion           -          Australian Citizen

   Eruanga Andrew Odion  -          United States of America Citizen

   Felix Ohireime Odion  -          Australian Temporary Resident

   Anthony Ojeikere Odion  -          Nigerian Citizen

   Patrick Isokpehi Odion  -          Australian Citizen

   Francis Iuebafe Odion  -          Australian Citizen

8. The Tribunal put to the applicant at hearing that she was not able to satisfy the “balance of family” based on the evidence provided.

9. Ms Anne Odion (Anne) answered on behalf of the applicant. Anne said that, when the applicant applied in 2016, she was told that she was eligible. Upon further questioning, Anne said that her understanding was that the applicant was eligible. She said that, five years later, they received notice of having to complete medical tests, so the family was led to believe that everything was alright. She said that they were given false hope.

10. Mr Omogbai Odion (Omogbai) told the Tribunal that he took issue with the process. Omogbai said that they had followed the process to the very end. He said that, when payment is made, you assume that the application is successful. He said that the applicant should have been told at some stage that the application was “invalid”. Like Anne, he said that the family was given false hope.

11. Mr Patrick Odion (Patrick) queried whether the process had changed since 2016. Patrick said that their understanding was that the children did not need to be permanent residents. He said that they could have waited a couple of years until Felix was granted permanent residency (Felix was granted permanent residency in 2019). He said that the process was totally misleading and the family was given false hope. He said that, in his experience working as a public servant, when something is wrong a department informs someone that they are ineligible or that more information is needed. He said that the process has taken an emotional toll on the applicant. He said that the applicant needs to be around her grandchildren in Australia.

12. Mr Francis Odion (Francis) told the Tribunal that the reason the family wants the applicant to come to Australia is because most of her grandchildren are here. Francis said that the family has been getting her to travel to Australia every year. He said that the process has been stressful for her, and that if she goes back to Nigeria, there is no one to support or help her. In this regard, he said that his brother who lives over there (Anthony) is not capable of supporting her but they are.

13. The applicant told the Tribunal that she is the mother of five children who are in Australia. She reiterated the comments of some of her children when she said that there should have been someone to inform her that she was “ineligible” at the time. She said that her son Anthony has triplets and has lost his job.

14. Omogbai concluded by appealing to the Tribunal to consider the matter on compassionate grounds. He said that it will be difficult for the applicant to return to Nigeria.

15. The Tribunal has considered the evidence in front of it, including the testimony of the applicant and her children at hearing. It finds that while Anne, Patrick and Francis were all Australian citizens at the time of application, Omogbai, Eruanga, Felix and Anthony were not Australian citizens or Australian permanent residents who were usually resident in Australia. Although it acknowledges that Felix was granted permanent residency in February 2019, he did not possess this residency at the time of application almost three years before.

16. The circumstances that were claimed at hearing – namely, the time in which it took to come to a decision that was unfavourable to the applicant, and the sense of the family being given “false hope” by the applicant being directed to undergo medical tests – have been consistently argued during the appeal process. While the Tribunal acknowledges that these are unfortunate, they are not relevant to the question of whether the “balance of family” test is met.

17. Because the number of children who are eligible (namely, Anne, Patrick and Francis) is not more than or equal to the number of ineligible children

18. (namely, Omogbai, Eruanga, Felix and Anthony), the applicant does not meet r.1.05(2C).

19. Furthermore, the information in front of the Tribunal, including in the delegate’s decision, is that Anthony, Omogbai and Felix were ineligible children who were taken to reside in Nigeria at the time of application and that Anthony was an ineligible child who was taken to reside in the United States of America at that time. Therefore, the greatest number of ineligible children who were usually resident in Nigeria at the time of application was three, which is not less than the number of eligible children. The applicant does not meet r.1.05(2D).

20. Because the applicant meets neither of these alternative requirements under the “balance of family” test in r.1.05, she does not meet r.1.05 in its entirety.

21. As the applicant does not satisfy the “balance of family” test, she does not meet cl.143.213 which is a requirement for the grant of the visa.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a Contributory Parent (Migrant) (Class CA) visa.

    David Crawshay
    Member