Paul (Migration)

[2024] AATA 3918

Paul (Migration) [2024] AATA 3918 (10 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yolanda Violet Paul

REPRESENTATIVE:  Mr Gil Regino Tabios (MARN: 9251561)

CASE NUMBER:  2016329

HOME AFFAIRS REFERENCE(S):          CLF2017/34128

MEMBER:Margie Bourke

DATE:10 September 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 10 September 2024 at 12:20pm

CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Parent) – balance of family test – representative’s concession that applicant does not meet requirement, consent to decision without hearing and request for referral for ministerial consideration – one child an Australian citizen, one in  third country and one in Australia on temporary visa at time of application – third child now holds permanent visa – compassionate or compelling circumstances – applicant’s age and family unity – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 360(2)(b)
Migration Regulations 1994 (Cth), rr 1.03, 1.05(1)(a), (b), (2), (2C), (2D), (3), Schedule 2, cl 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 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 applied for the visa on 1 May 2017. 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 which requires at the time of application, if the visa applicant is not the holder of a substituted Subclass 600 visa, that the visa applicant meets the balance of family test.

3. The delegate refused to grant the visa in the decision record dated 28 October 2020, on the basis that cl.804.214 was not met because the delegate was not satisfied the visa applicant met the balance of family test.

4. The review applicant was invited to attend a hearing scheduled for 18 September 2024. The review applicant provided the Tribunal with the completed hearing invitation form, advising the Tribunal that the review applicant and her representative would attend the hearing. On 9 September 2024 the review applicant’s representative advised the Tribunal that the representative and the applicant would not be attending the hearing, and consented to the Tribunal making a decision on the papers. Further in the submission dated 9 September 2024 the representative confirmed that the applicant did not meet the balance of family test requirement at the time of application, and the Tribunal would make a decision to affirm the decision of the Department and requested the member make a recommendation for ministerial intervention.

5. Pursuant to the written consent provided by the applicant, the Tribunal has proceeded to make a decision without conducting a hearing pursuant to s.360(2)(b) of the Act.

6. The applicant was represented in relation to the review.

7. The following are the written reasons the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa application was made on the basis that the applicant is the parent of Edward Paul, an Australian citizen (and ‘the child’ for the purposes of assessment of the requirements of cl.804.214) and the sponsor in the application.

   Is the ‘balance of family test’ satisfied?

9. The Tribunal is satisfied the applicant was the holder of a subclass 600 visa at the time of application. The Tribunal is satisfied that the applicant was not the holder of a substituted subclass 600 visa at the time of application. Therefore the applicant is required to satisfy the balance of family test set out in reg 1.05 to meet the requirements of cl.804.214.

10. With those 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).

11. The definition of family test in regulation 1.05(2) defines the child of a parent is an eligible child if the child is an Australian citizen, or an Australian permanent resident usually resident in Australia, or an eligible New Zealand citizens usually resident in Australia. The subclause states that any other child of the parent is an ineligible child.

12. 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).

13. ‘Children’ for these purposes includes all natural, adopted and step-children (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).

14. The applicant provided the Tribunal with a copy of the Departments decision record dated 28 October 2020 and submissions from the applicant’s representative, which confirm that at the time of application the applicant declared she had three children, a son Edward Paul an Australian citizen, a daughter Priscilla Paul an Indian citizen residing in Portugal, and a daughter Candida Shetty residing in Australia and the holder of a temporary visa.

15. The applicant’s representative had submitted to the Department that the third child, the daughter Candida Shetty was the holder of a temporary visa that could lead to the holder of a permanent resident visa, and that this was sufficient to be included in the definition of an eligible child for the purpose of the balance of family test. The Tribunal, concludes that the Department delegate was correct not to accept this submission. The daughter Candida Shetty was the holder of a temporary visa at the time of application, and therefore did not meet the definition of eligible child at the time of application for the purpose of the balance of family test.

16. The Tribunal is satisfied that at the time of application the applicant had one eligible child, her son Edward Paul who was an Australian citizen. The Tribunal is satisfied that at the time of application the applicant’s other two children meet the definition of ineligible child for the purpose of the balance of family test as the other two children were not Australian citizens, Australian permanent residents usually resident in Australia, or eligible New Zealand citizens usually resident in Australia.

17. There is no evidence before the Tribunal that in applying the balance of family test any of the ineligible children would meet the definition of a child as described in reg 1.05(3), to which the balance of family test does not apply.

18. The Tribunal is satisfied that the applicant did not satisfy the balance of family test because the number of eligible children was not greater to or equal to the number of ineligible children. Therefore the applicant did not meet the requirements of reg 1.05(2C) or reg 1.05(D) at the time of application.

19. The Tribunal is satisfied that the daughter of the applicant, Candida Shetty was granted a Australian permanent resident visa on 18 June 2019, prior to the Department’s decision.

20. On the basis of the findings above, the Tribunal is satisfied that the applicant does not meet the balance of family test in reg 1.05 at the time of application and therefore does not satisfy the requirements at the time of application in cl.804.214.

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

    DECISION

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

    Ministerial Intervention

23. The Tribunal considers this is an appropriate matter to bring to the Minister’s attention for consideration pursuant to the exercise of the discretion under s.351 of the Act. The Tribunal considers there are compassionate or compelling circumstances in relation to the review applicant who is 75 years of age at the time of this decision, whose spouse is deceased and who has three children, one of whom is an Australian citizen and one of whom is an Australian permanent resident. The Tribunal considers there are exceptional circumstances in this matter relating to the unity of family, and notes that at the time of the Department’s decision, the applicant would meet the requirements in the balance of family test, as two of her children meet the definition of eligible child.

    Margie Bourke
    Senior 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.