Redmile (Migration)

[2018] AATA 2609

Redmile (Migration) [2018] AATA 2609 (14 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ian Gary Redmile

VISA APPLICANTS:  Mr Frank Leonard Redmile
Mrs Barbara Lilian Ivy Redmile

CASE NUMBER:  1611248

DIBP REFERENCE(S):  OSF2014/086859

MEMBER:Kira Raif

DATE:14 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Contributory Parent (Migrant) (Class CA) visas.

Statement made on 14 June 2018 at 3:02pm

CATCHWORDS
Migration – Contributory Parent (Migrant) (Class CA) visa– Subclass 143 (Contributory Parent) – Balance of family test – Frequency of contact – Number of eligible children – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05, Schedule 2 cls 142.213, 143.321

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 12 July 2016 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) Subclass 143 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of the UK. They applied for the visas on 15 May 2014. They were sponsored in that application by their son. The delegate refused to grant the visa on the basis that the visa applicants did not meet cl. 143.213 because the delegate was not satisfied the visa applicants met the balance of family test. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 14 June 2018 to give evidence and present arguments. 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 Contributory Parent (Migrant) (Class CA) visa contained only one Subclass 143: Item 1130(4) of Schedule 1 to the Regulations. The criteria for a Subclass 143 visa are set out in Part 143 of Schedule 2 to the Regulations.

5. With limited exceptions not relevant in the present case, cl.143.213 requires at the time of the application the applicant must satisfy the balance of family test, as defined in r.1.05. 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).

6. ‘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?

7. There is no evidence that the visa applicants are holders of the Subclass 173 Contributory Parent (Temporary) visas or the substituted Subclass 600 visas. They must satisfy the balance of family test.

8. The review applicant provided to the Tribunal a copy of the primary decision. It indicates that the applicant stated on the application form that he had four children, one child (the sponsor) was a permanent resident of Australia and three children were usually resident in England.

9. The first named visa applicant (the visa applicant) states in the application that he has no contact with his children from the previous marriage and that upon divorce with his former partner, the agreement was that the children would be adopted by her new partner. However, no evidence of such adoption has been provided. In the absence of any evidence of adoption, the Tribunal considers these children to be the visa applicant’s children, irrespective of the nature of their relationship or the frequency of contact.

10. There is no evidence that the three children living in England have been removed by court order, by adoption or by operation of law or that 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.

11. The review applicant’s evidence to the Tribunal is that he has not had any communication or contact with his step-siblings his whole life and his father has not had any contact with them for over thirty years. The Tribunal acknowledges that evidence and is prepared to accept that evidence but the Tribunal does not consider that the frequency of the contact or the nature of the parent-child relationship are relevant for the purpose of meeting the balance of family test.

12. The Tribunal finds that the visa applicant has four children and only one of these children is resident in Australia and is a permanent resident of Australia. Only one child is an eligible child. The Tribunal is not satisfied the number of eligible children is greater than, or equal to, the number of ineligible children. The visa applicants do not meet r. 1.05(2C) and the Balance of Family Test for the purpose of cl. 143.213. The second named applicant does not meet cl. 143.321.

    Conclusion

13. For the reasons above, the Tribunal finds that the applicants do not meet the criteria for a Subclass 143 visa.

    DECISION

14. The Tribunal affirms the decision not to grant the applicants Contributory Parent (Migrant) (Class CA) visas.

    DECISION

15. The Tribunal affirms the decision not to grant the applicants Contributory Parent (Migrant) (Class CA) visas.

    Kira Raif
    Senior Member