Palavi (Migration)

[2017] AATA 497

Palavi (Migration) [2017] AATA 497 (23 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Olivia Palavi

CASE NUMBER:  1607891

DIBP REFERENCE(S):  CLF2010/133049

MEMBER:Michelle Grau

DATE:23 March 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 23 March 2017 at 11:20am

CATCHWORDS

Migration – Age Parent (Residence)(Class BP) visa – Subclass 804 (Aged Parent) – Balance of family test – Customary adoption of children – Number of children in Australia greater than children elsewhere

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 – cl 804.214 - r.1.05 - r.1.05(1)(a) - r.1.05(1)(b) – r.1.05(2) - r.1.05(3)

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 18 May 2016 to refuse to grant the visa applicant a Aged Parent (Residence) (Class BP) Subclass 804 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 6 October 2010. 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

3.    The delegate refused to grant the visa on 18 May 2016 on the basis that cl.804.214 was not met because she did not meet the balance of family test as she had five children, two of whom were in Australia, two in Tonga and one in New Zealand.

4.    The applicant appeared before the tribunal on 24 February 2017 to give evidence and present arguments. The tribunal also received oral evidence from the applicant’s daughter and granddaughter. The applicant’s granddaughter gave evidence for and on behalf of the applicant, though the applicant also provided some evidence. The tribunal hearing was conducted with the assistance of an interpreter in the Tonga and English languages.

5.    The applicant was represented in relation to the review by her grandaughter.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

7.    The visa application was made on the basis that the applicant is the parent of Ana Faupula Alo (‘the child’). The evidence before the tribunal is that the sponsor, Ana Faupula, is the child.

8.    The applicant is a 79 year old Tongan citizen. The sponsor, Ana Faupula Alo, is the applicant’s daughter, who is an Australian citizen.

9.    According to the application the applicant listed only two children, Ana (the sponsor) and Kilistina, both are Australian citizens.

1. However in a phone call on 3 June 2015 the applicant informed immigration she had five children – Ana, Kilistina, both in Australia, Eliki in New Zealand, Senolita in Tonga and Hilinga in Tonga.

2. The delegate therefore found the applicant did not meet the balance of family test in r1.05 because she had three children who were not usually resident in Australia, which is a greater number than those in Australia.

3. At review, the sponsor provided a statutory declaration which stated Elik and Senolita were adopted to her grandparents, Uasiliaa and Aisea Mausia. She noted this was a custom in Tonga.

4. In her statutory declaration, the applicant stated her eldest daughter was Ana, born in 196.She then had Eliki Finau, named after her husband’s name. She then had Senolita and Kilistina and registered their births in 1968. She could not look after Eliiki, Senolita and Kilistina due to marital problems. he had a lot of siblings and her parents support so agreed ti was best for her side of the family to adopted Eliki and Senolita. They had two daughters. After a couple of ears they moved to her husband’s village and soon after she had Hilinga. The applicant stated there was no one to look after her in Tonga as Hilinga is still young and the other children are adopted out and have not cared for her.

5. Statutory declarations were also provided stating that the sponsor and Kilistina support and look after the applicant.

FINDINGS AND REASONS

Is the ‘balance of family test’ satisfied?

1. With a limited exception not applicable 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 and attached to this decision. 

2. Broadly speaking, an applicant will satisfy the balance of family test if the number of his or her children lawfully and permanently resident (or eligible New Zealand citizens usually resident) in Australia is either: greater than or equal to the total number of children who are resident overseas or greater than the greatest number of children who are resident in any single overseas country: r.1.05(2).

3. ‘Children’ for these purpose includes a child or step-child of (1) the parent; (2) the parent’s spouse or de facto partner; or (3) the former spouse or de facto partner of the parent, if the child was born or adopted before or during that relationship: r.1.05(1)(a). If the whereabouts of a child of the applicant is unknown, the child is taken to be resident in the usual country of residence of the applicant: r.1.05(1)(b). However, no account is to be taken of children specified in r.1.05(3). 

4. The balance of family test includes all natural, adopted and step-children of either the parent, or parent’s partner or former partner of the parent if the child was born or adopted before or during the relationship.

5. However, no account is to be taken of children who have been removed from the exclusive custody of the parent by court order, adoption or operation of law; or children who experience human rights abuse or persecution and it is not possible for the family to be reunited; or children who are residents of refugee camps operated by UNHCR or Hong Kong and are registered with UNCHR.

6. The tribunal accepts the applicant has two children who are Australian citizens and who are lawfully and permanently resident in Australia. The sponsor moved to Australia in 1987 and became a citizen in1990 and has continued to reside in Australia.  Kilistina has been an Australian citizen since 2001 and resides in Australia.

7. The applicant also has 3 other children, Eliki, Senolita and Hilinga. 

8. The issue is whether Eliki and Senolita should be considered as children as it is claimed they were adopted out as babies to the grandparents in the late 1960s.

9. Having heard from the applicant and witnesses, the tribunal accepts they are credible witnesses. Their evidence was clear, spontaneous and consistent. The tribunal spent some time asking about the adoption and reasons for it.  The tribunal accepts their evidence in its entirety.

10. The tribunal accepts that the applicant had marital problems throughout her married life and she was frequently separated from her now deceased husband. She and her husband were separated at the time of the births of the twins and Eliki.  So from birth Eliki and Senolita were adopted by their grandparents. They lived in the grandparents’ home and were cared for by them to adulthood. The grandparents provided for them, fed and clothed them and took responsibility for education and upbringing. The applicant gave detailed, clear evidence about the situation. The applicant’s daughter’s evidence was consistent as well.

11. The tribunal was at first doubtful that the first born son would be adopted out. However, the applicant explained her husband had had another older son with another woman.  The applicant gave detailed evidence about her marital problems and the long periods they were separated and then together again. It was evident the situation was difficult for her. Two of the applicant’s children were adopted as babies because of her marital problems and the difficulties in caring for them all alone.

12. The tribunal also considered country information about Tongan customary adoption and notes it is common practice within families.  The children were adopted before the Tongan Guardianship Act 2004. A decision in July 1985 by the US Court of Appeals refers to letter from the Crown Solicitor of Tonga in July 1980 that “Tongan customary adoptions are an important aspect of culture and continue to be practiced very commonly. There is no need to go to courts to enforce parental or children’s rights or duties because they are treated in all respects as if they were legally adopted.”  Advice by the Crown Law Department in Tonga in December 2004 noted “factors that characterise adoptions in our culture such as clothing the child, feeding, staying with them and paying for education.”[1]  The tribunal accepts that Eliki and Senolita were customarily adopted in accordance with r1.04(2).

    [1] Guttenbeil, G.L. 2004, Letter to Department of Immigration, “ re- Adoption in accordance with Tongan culture” 9 December

13. Based on the credible oral evidence and country information about Tongan customary adoption, the tribunal accepts Eliki and Senolita were removed from the exclusive custody of the applicant by customary adoption.  As a result the tribunal finds Eliki and Senolita can be excluded from the consideration of children. The applicant therefore has two children resident in Australia and Hilingi is resident in Tonga.

14. The tribunal finds the number of children who are lawfully and permanently resident in Australia or are eligible NZ citizens usually resident in Australia are greater than or equal to the total number of children who are resident overseas and are greater than the number of children who are resident in any single overseas country.

15. On the information before the tribunal, the applicant meets the ‘balance of family test’ and therefore satisfies cl.804.214.

16. The tribunal notes, in passing, that towards the end of the hearing it became apparent that Eliki’s wife and children were living in Australia. Eliki’s wife came to Australia to care for her mother. Eliki continued to visit them but worked in New Zealand. He was back and forth for employment. The Department movement records show Eliki is a New Zealander, holds a 444 visa, travels in and out of Australia on 444 and tourist visas, sometimes on his New Zealand passport and sometimes on his Tongan passport. At hearing the applicant’s granddaughter thought Eliki planned to arrive in Australia in March again. The tribunal accepts, on the evidence, Eliki is an eligible New Zealand citizen. So even if Senolita and Eliki were to be included in the children to be counted, the applicant may also meet the criterion because the applicant would have three children usually resident in Australia.

17. 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

1. 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 of Schedule 2 to the Regulations.

Michelle Grau
Member

ATTACHMENT – Legislation Extracts from Migration Act 1958 and Migration Regulations 1994

Section 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 spouse or de facto partner of the parent; or

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

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

(B)while the parent was the spouse or de facto partner of the former spouse or former de facto partner; 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 or de facto partner 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 not in a married relationship or de facto relationship with the other parent.

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.