Saduk (Migration)

[2022] AATA 939

Saduk (Migration) [2022] AATA 939 (17 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Maria Saduk

CASE NUMBER:  2103153

HOME AFFAIRS REFERENCE(S):          CLF2018/171019

MEMBER:Andrew George

DATE:17 January 2022

PLACE OF DECISION:  Darwin

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

Statement made on 17 January 2022 at 1:53pm

CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – balance of family test – at time of application two children were Australian citizen and permanent resident, and three were Australian temporary resident and foreign citizens – temporary resident now a citizen – possibility of re-applying – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994 (Cth), rr 1.03, 1.05(2C), (2D), Schedule 2, cl 804.214

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 21 June 2018. The applicant was onshore and held a Visitor Visa Subclass FA 600, which was not a substituted Subclass 600 visa. At this time, 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 included cl 804.214 of Schedule 2.

3. The delegate refused to grant the visa on 23 February 2021 on the basis that cl 804.214 was not met as she did not satisfy the balance of family test as defined in reg 1.05 (see attachment to this decision). By operation of cl 804.21, cl 804.214 must be satisfied as at the date of application on 21 June 2018. Therefore, this is a matter where both the delegate and the Tribunal have little discretion.

4. This matter was initially listed for hearing on 14 September 2021 before being adjourned to 16 November 2021 at the applicant’s request. The applicant appeared before the Tribunal on that day, represented by Ward Keller, and the hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

5. The principal evidence relied upon was contained in the hearing bundle, submitted in compliance with the practice directions, which included statutory declarations from Ms Sesi McDean, Mr Steven McDean, and Ms Fara Jurkijevic. Evidence of Ms Jurkijevic’s relatively recent grants of permanent residency and Australian citizenship were included. Several medical reports were relied upon, as were written submissions. These submissions made sensible concessions that the applicant could not succeed and sought referral for Ministerial intervention.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the applicant is the parent of Ms McDean. The Tribunal accepts Ms McDean’s evidence that she is the applicant’s eldest daughter, which is corroborated by Ms Jurkijevic who is the youngest daughter.

   Is the ‘balance of family test’ satisfied?

8. In the present case, cl 804.214 requires at the time of the application the applicant must satisfy the balance of family test. 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).

9. ‘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).

10. The Tribunal accepts Ms McDean’s and Ms Jurkijevic’s evidence that the applicant has five children, being three daughters and two sons. The Tribunal infers that these children are natural, as opposed to being adopted. As at the date of application, the Tribunal is satisfied from the material before it that these children were:

    a.Mr Simson Surya (born [Date 1]), who was an Indonesian citizen living in Indonesia;

    b.Mr Devritson Area Komara (born [Date 2]), who was an Indonesian citizen living in Indonesia;

    c.Ms Sesi McDean (born [Date 3]), who was an Australian citizen living in Australia;

    d.Ms Natalia Septiana (born [Date 4]), who was an Australian permanent resident usually resident in Australia; and

    e.Ms Fara Jurkijevic (born [Date 5]), who was an Australian temporary resident but is now an Australian citizen living in Australia.

11. As at the date of application, the Tribunal is satisfied that only Ms McDean and Ms Septiana were eligible children for the purpose of the balance of family test. Mr Surya, Mr Lomara, and Ms Jurkijevic were ineligible children. It follows that the Tribunal is satisfied that, as at the date of application, the number of eligible children was less than the number of ineligible children and the balance of family test was not satisfied.

12. Based on the findings above, the applicant does not meet the balance of family test in reg 1.05 and therefore does not satisfy cl 804.214 of Schedule 2 of the Regulations.

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

    Request for Ministerial intervention

14. The applicant, through her lawyer, has made an eloquent request for the Tribunal to exercise its discretion to refer this matter personally to the Minister for intervention. For health reasons, that need not be detailed to respect the applicant’s privacy, hardship will likely accrue to the applicant with this decision under review being affirmed. The Tribunal has therefore taken a pause to consider the applicant’s request.

15. The Tribunal notes that Ms Jurkijevic is now an Australian citizen and observes that the balance of family test would likely now be satisfied if a further application was made. The Tribunal is also uncertain what bearing the applicant’s health conditions would otherwise have had on her application had the balance of family test been met.

16. Accordingly, the Tribunal considers that the preferable course would be for the applicant to remake her application considering Ms Jurkijevic’s grant of Australian citizenship. Therefore, the Tribunal does not refer this matter to the Minister personally. Despite this, however, there is nothing preventing the applicant from so doing.

    DECISION

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

    Andrew George
    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.