Rondonuwu (Migration)

[2018] AATA 736

Rondonuwu (Migration) [2018] AATA 736 (12 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Daud Herman Rondonuwu
Mrs Jetje Jeanne Robot
Miss Janetta Angela Pangalila
Mr Jonathan Stephen Pangalila
Mr Jeremia Daryl Pangalila

CASE NUMBER:  1607709

DIBP REFERENCE(S):  CLF2013/264649

MEMBER:Kira Raif

DATE:12 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.

The Tribunal has no jurisdiction in relation to the first named applicant.

Statement made on 12 March 2018 at 3:10pm

CATCHWORDS
Migration – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – Whether applicants satisfy the balance of family test – Applicant has more ineligible children than eligible children – Applicants do not pass the balance of family test

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.05, Schedule 1, Item 1124A, Schedule 2, cls 804.214, 804.321

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 to refuse to grant the applicants Aged Parent (Residence) (Class BP) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are nationals of Indonesia. They applied to the Department of Immigration for the visa on 24 October 2013. The delegate refused to grant the visas on 24 May 2016 on the basis that cl.804.14 was not met because the delegate was not satisfied the applicants met the balance of family test. The applicants seek review of the delegate’s decision.

3. After the application for review was made, the parties informed the Tribunal that the first named review applicant has passed away. The Tribunal finds that it has no jurisdiction in relation to Mr Daud Herman Rondonuwu.

4. The applicants appeared before the Tribunal on 12 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from other witnesses nominated by the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. 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.

6. With 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 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).

7. ‘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?

8. The applicants provided to the Tribunal a copy of the primary decision. It indicates that the application included the primary visa applicant (now deceased) and his partner (‘the applicant’), as well as their three adopted children. The applicant indicated in the application that their two biological children are Australian citizens or permanent residents. The delegate found that the applicant had two children in Australia and three children who were not Australian permanent residents or citizens, concluding that the applicant did not meet the balance of family (BOF) test.

9. The applicant provided to the Tribunal evidence of their children’s Australian residence status and a family tree. In their written submission to the Tribunal the applicants claim that the BOF test failed to take into account all of the family and that the grandchild Elijah had recently become an Australian citizen. The Tribunal is mindful, however, that the grandchildren are not considered for the purpose of the balance of family test.

10. The applicant notes that the three grandchildren, who were included in the application, were adopted in 2012. The only surviving children, Larry and Veisy, are Australian citizens. In oral evidence the applicant told the Tribunal that the three biological grandchildren were adopted in Indonesia for practical reasons as they used to live in a regional area. Ms Robot confirmed that the children were adopted in accordance with the Indonesian laws and the adoption is legally recognised in Indonesia. The Tribunal finds that having gone through a formal adoption that is legally recognised, the grandchildren have severed their relationship with the biological parents and they are considered to be the applicant’s children for the purpose of the balance of family test.

11. The applicants’ evidence indicates that the couple’s two children live in Australia and are Australian permanent residents or citizens. However, the three adopted children, who are included in the application, do not have the relevant immigration status and presently hold Bridging visas. As such, the Tribunal finds that the applicants have two eligible children and three ineligible children. As the number of ineligible children is greater than the number of eligible children, the Tribunal is not satisfied the applicant meets the balance of family test in r. 1.05. The Tribunal is not satisfied the applicant meets cl. 804.214 while the secondary applicants do not meet cl. 804.321.

12. The applicant’s evidence to the Tribunal is that the daughter in Australia has been financially supporting the family for a number of years and that the children have settled in Australian schools. The applicant’s evidence is that the entire surviving family lives in Australia and have strong ties to Australia. The Tribunal acknowledges that evidence but has no discretion to grant the visa on the basis of these circumstances. Having found that one of the key requirements for the grant of the visa is not met, the Tribunal must affirm the decision under review.

    Conclusion

13. For the reasons above, the Tribunal finds that the applicants do not meet the criteria for a Subclass 804 visa.

    DECISION

14. The Tribunal affirms the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.

15. The Tribunal has no jurisdiction in relation to the first named applicant.

    Kira Raif
    Senior Member