Tang (Migration)

[2020] AATA 2901

Tang (Migration) [2020] AATA 2901 (8 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Chi-Kong Tang

VISA APPLICANTS:  Mr Man Shun Tang
Ms Man Ching Yu

CASE NUMBER:  1819801

DIBP REFERENCE(S):  OSF2008/063214 PNJ

MEMBER:Mary Urquhart

DATE:8 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Parent (Migrant) (Class AX) visas.

Statement made on 08 July 2020 at 1:46pm

CATCHWORDS
MIGRATION – Parent (Migrant) (Class AX) visa – Subclass 103 (Parent) – no evidence that assurance of support accepted by Department of Family and Community Services – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 103.226

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 visa applicants Parent (Migrant) (Class AX) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 27 May 2008. The delegate refused to grant the visas on 7 June 2018 on the basis that cl.103.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not satisfied because the applicants did not provide evidence that an Assurance of Support has been accepted by the Department of Family and Community Services as required by cl.103.226

   RELEVANT LAW

3. At the time the visa application was lodged, the Parent (Migrant) (Class AX) visa contained Subclass 103 (Parent): Item 1124 of Schedule 1 to the Regulations.

4. The Parent (Migrant) (Class AX) visa is a permanent visa for parents of settled Australian citizens, Australian permanent residents and eligible New Zealand citizens who satisfy the ‘balance of family’ test.

5. The criteria for a Subclass 103 visa are set out in Part 103 of Schedule 2 to the Regulations. The primary criteria must be satisfied by at least one member of the family unit who is an applicant for the visa. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

6. The primary criteria require that at the time of application, the visa applicant be a ‘parent’ of a settled Australian citizen or permanent resident, or a settled eligible New Zealand citizen: cl.103.211. Under r.1.03 of the Regulations, ‘parent’ includes an adoptive or step-parent and ‘step-child’ in relation to a parent is a child who is the natural or adopted child of a person’s current or, in certain circumstances, former spouse.

7. The Regulations also require that the visa applicant be sponsored at the time of application by, if the child has turned 18, the child or the child’s cohabiting spouse (if that person has turned 18) or, if the child has not turned 18, by either the child’s cohabiting spouse (if the spouse has turned 18) or a relative or guardian of the child or the child’s spouse who has turned 18 or a community organisation: cl.103.212.

8. The visa applicant must also satisfy the ‘balance of family’ test: cl.103.213. The ‘balance of family test’ is defined at r.1.05 of the Regulations as follows:

   1.05Balance 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, adopted child or step child of:

   (i)the parent; or

   (ii)a spouse of the parent; or

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

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

   (B)while the parent was the spouse of the former spouse; 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 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 permanently separated from the other parent; or

   (v)the parent is divorced from the other parent.

9. At the time of decision, the primary criteria to be satisfied are that:

   ·the visa applicant continues to satisfy the criterion in cl.103.211: cl.103.221

   ·a sponsorship of the kind mentioned in cl.103.212 has been approved by the Minister and is in force (whether or not the sponsor was the sponsor at time of application): cl.103.222

   ·an assurance of support has been accepted by the Department of Family and Community Services: cl.103.226

   ·the visa applicant and family members satisfy certain public interest criteria: cl.103.224, 103.225, 103.227 and 103.228

   ·if the applicant has previously made a valid application for another parent visa, that application is not ‘outstanding’: cl.103.229

   ·in the case of applications made on or after 1 July 2005, the visa applicant satisfies certain passport requirements: cl.103.230.

10. Part 103 of Schedule 2 also contains secondary criteria that must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.

11. The issue in the present case is whether an Assurance of Support has been accepted by the Department of Family and Community Services: cl.103.226

12. On 28 August 2018 the applicants were invited to provide evidence that an Assurance of Support has been accepted in accordance with visa requirements and to do so by 12 June 2020 the Tribunal received a response.

13. In the response the issue of Assurance of support was not addressed.

14. On 29 May 2020 the applicant was sent an invitation to comment or provide information that an Assurance of Support has been accepted in accordance with visa requirements and to do so by 12 June 2020. The letter put the applicants on notice that if they did not respond the matter may be determined without any further opportunity to provide evidence and that they would lose their right to appear before the Tribunal.

15. The applicant did not provide information addressing Assurance of Support.

16. Accordingly there is no evidence before the Tribunal of an Assurance of Support having been accepted as required. The Tribunal is unable to be satisfied that the applicants meet the requirements.

17. For the reasons given above the Tribunal finds the visa applicants do not satisfy the requirements of cl.103.226.

    DECISION

18. The Tribunal affirms the decisions not to grant the visa applicants Parent (Migrant) (Class AX) visas.

    Mary Urquhart
    Member