Tim (Migration)

[2020] AATA 4225

Tim (Migration) [2020] AATA 4225 (8 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:Ms Teang Tim

VISA APPLICANTS:  Ms Buth Vann
Miss Kolika Vann

CASE NUMBER:  1711636

DIBP REFERENCE(S):  2014/090062

MEMBER:Kira Raif

DATE:8 October 2020

PLACE OF DECISION:  Sydney

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

Statement made on 08 October 2020 at 11:40am  

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – balance of family test – adult child sponsor in Australia, one deceased child and two in home country – one of those two  to third country, lost contact and died there – after learning of sibling’s death, review applicant notified lawyer, who did not notify department – death certificate provided to tribunal – that child alive at time of visa application – remaining adopted child included in balance of family test – time since application made – no discretion to recommend grant of visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05, Schedule 2, cl 143.213

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 16 May 2017 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 applicant applied for the visa on 11 June 2014. The delegate refused to grant the visa on the basis that the first named visa applicant (‘the visa applicant’) did not meet the balance of family test. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The review applicant appeared before the Tribunal on 24 August 2020 and 7 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages. The review applicant was represented in relation to the review by her registered migration agent. 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 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.

6. 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).

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. There is no evidence that the visa applicant was a holder of the Subclass 173 Contributory Parent (Temporary) visa or a substituted Subclass 600 visa. The visa applicant must satisfy the balance of family test.

9. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that when the application was made, the visa applicant declared that she had one child in Australia (the sponsor), one deceased child and two children (Samnang and Kolika) residing in Cambodia. The delegate wrote to the visa applicant noting that she may not meet the Balance of Family Test but the visa applicant did not provide her comments within the specified time. As a result, the delegate was not satisfied the visa applicant met the Balance of Family test for the purpose of cl. 143.213.

10. On the morning of 24 August 2020, a few hours before the commencement of the hearing, the applicant provided a written submission to the Tribunal. The applicant provided a death certificate for Samnang Tim, born in January 1967, showing the date of death as 11 January 2016, as well as funeral photographs and a media report.

11. In oral evidence, the review applicant told the Tribunal that her mother has three biological children and an adopted child. Two of the children have passed away, there is only her and the adopted child. The review applicant said her brother Samnang passed away in January 2016. He went to work in Thailand and they lost contact with him. Later she learned about her brother’s death and in 2016 she notified her previous lawyer but the lawyer did not provide the evidence to the Department. The applicant provided to the Tribunal a death certificate relating to Samnang. The Tribunal requested the Department to verify this document through the overseas post. On 11 September 2020 the Tribunal received advice that the death certificate is genuine.

12. Having regard to that evidence, the Tribunal finds that the visa applicant’s son Samnang Tim had passed away in 2016. The application for the visa was made in 2014 and the Tribunal finds that this child was alive at the time of application.

13. It is possible that the visa applicant meets the balance of family test at the time of this decision. However, the Tribunal finds that when the application was made, the visa applicant had three children. One child (the sponsor) was an Australian citizen or permanent resident. Two children were not Australian citizens or permanent residents. These are the second named visa applicant and Samnang.

14. The review applicant told the Tribunal that when her application was made, her brother was already missing. In her post-hearing submission of 7 October 2020 the review applicant states that Samnang had gone overseas and they lost touch with him, were unsuccessful in trying to locate him and presumed him dead. While it may be that the family had lost contact with him, evidence before the Tribunal indicates that Samnang was alive when the application was made. In particular, the Tribunal does not accept the review applicant’s claim that the presumption of death should apply with respect to Samnang at the time of application because his whereabouts were unknown. In this case, there is clear evidence that Samnang passed away in 2016, as is evidenced by his death certificate. The presumption of death cannot apply to presume his death two years earlier in circumstances where there is undisputed evidence of death. The Tribunal finds that Samnang was alive in 2014 when the application was made, even if his whereabouts were unknown to the family.

15. Further, r.1.05(1)(b) provides that 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. For that reason also, the Tribunal does not consider that the presumption of death can apply with respect to Samnang at the time of application.

16. When the application was made, the visa applicant had two children outside of Australia. There is no evidence before the Tribunal that these children had been removed by court order, by adoption or by operation of law from the exclusive custody of the parent. There is no evidence that either child was resident in a country where the child suffered persecution or abuse of human rights and that it was not possible to reunite the child and the parent in another country. There is no evidence that either child was resident in a refugee camp operated by the UNHCR and was registered as a refugee.

17. The review applicant told the Tribunal that she relied on the advice of a representative that an adopted child is not counted in the Balance of Family test and that only biological children count. However, the Tribunal finds that once a child is adopted, she is considered to be a child for the purpose of the Act. In this case the review applicant and the visa applicant claim the second named applicant was adopted and the Tribunal accepts that evidence and finds that the second named applicant is the child of the primary visa applicant. The Balance of Family test does not distinguish between biological children and adopted children.

18. The Tribunal finds that at the time of the application, the visa applicant’s two children, Samnang and Kolika were ‘ineligible children’. The Tribunal finds that the visa applicant had two ineligible children, who resided overseas, and one child who was an eligible child and who resided in Australia.

19. The Tribunal is not satisfied that when the application was made, the applicant met the balance of family test in r. 1.05 for the purpose of cl. 143.213. The Tribunal acknowledges that Samnang has now passed away and it may be that the visa applicant meets the Balance of Family test at the time of this decision. However, for the reasons stated above, the Tribunal is not satisfied she met that provision when the application was made.

20. As the visa applicant does not meet cl. 143.213, the second named applicant does not meet cl. 143.321. There is nothing to suggest the second named applicant meets the primary criteria for visa grant.

21. The review applicant refers to compassionate circumstances in this case, noting the time that has passed since the application was made and the family circumstances. The Tribunal acknowledges that evidence but has no discretion to recommend the visa grant where the visa criteria have not been met.

    Conclusion

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

    DECISION

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

    Kira Raif
    Senior Member