Vaughan (Migration)

[2018] AATA 2006

Vaughan (Migration) [2018] AATA 2006 (24 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Doris Agnes Vaughan

CASE NUMBER:  1610439

DIBP REFERENCE(S):  CLF2011/135928

MEMBER:Kira Raif

DATE:24 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 24 May 2018 at 8:32am

CATCHWORDS
Migration – Aged Parent (Residence) (Class BS) visa – Subclass 804 (Aged Parent) – Balance of family test – Child’s visa at the time of application – One eligible child – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.05, Schedule 2 cl 804.214

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 28 June 2016 to refuse to grant the visa applicant an Aged Parent (Residence) (Class BP) Subclass 804 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of the UK born in October 1937. She applied for the visa on 17 August 2011. The delegate refused to grant the visa on the basis that cl. 804.214 was not met because the applicant did not meet the balance of family test. The applicant seeks review of the delegate’s decision.

3. The applicant’s daughter appeared before the Tribunal on behalf of the applicant on 15 May 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 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.

5. 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).

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 applicant was the holder of a substituted Subclass 600 visa when the application was made. She must satisfy the balance of family test.

8. The applicant provided to the Tribunal a copy of the primary decision. It indicates that the applicant stated in her application that she had three children. Two of her children were resident in Australia, however, according to the decision record, the applicant’s daughter Jeanette Parker was a holder of a Temporary Subclass 820 visa when the application was made. She was granted the permanent visa in October 2012. The applicant’s daughter Veronica Vercoe was an Australian citizen since 1996 and she had another daughter Belinda Wood living in the US. This evidence was confirmed in the course of the oral hearing.

9. The Tribunal finds that only one of the applicant’s children is an eligible child. Her daughter Jeanette was a holder of temporary visa at the time the application was made and was therefore not an eligible child for the purpose of meeting the balance of family test.

10. There is no evidence that the daughter living in the US and the daughter who was not the holder of a permanent visa when the application was made, have been removed by court order, by adoption or by operation of law. There is no evidence that any of 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 Tribunal finds that the visa applicant has three children and only one of these children was resident in Australia and a permanent resident or a citizen of Australia at the time of the application. The Tribunal acknowledges that Jeanette Parker was granted permanent residence after the application was made but for the purpose of cl. 804.214, the balance of family must be met at the time of the application. At that time, only one child was an eligible child.

12. The Tribunal is not satisfied the number of eligible children is greater than or equal to the number of ineligible children. The visa applicant does not meet r. 1.05(2C) and the Balance of Family Test for the purpose of cl. 804.214.

    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 applicant an Aged Parent (Residence) (Class BP) visa.

    Kira Raif
    Senior Member