Wang (Migration)

[2022] AATA 468

Wang (Migration) [2022] AATA 468 (8 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Guozhong Wang

VISA APPLICANTS:  Mr Qimao Wang
Mrs Fengchun Jiang

CASE NUMBER:  2007240

HOME AFFAIRS REFERENCE(S):          BCC2016/831329

MEMBER:David Crawshay

DATE:8 March 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 08 March 2022 at 4:51pm

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – balance of family test – at time of application, one child an Australian citizen, one not, and third held permanent visa but had not entered Australia, so not ‘usually resident’ –entered soon after application made and has remained since – no discretion when criteria are clear – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.05(2C), Schedule 2, cls 143.213, 143.311

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 on 16 April 2020 to refuse to grant the visa applicants Contributory Parent (Migrant) (Class CA) Subclass 143 visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants, who are husband and wife, applied for the visa on 29 February 2016. The delegate refused to grant the visas on the basis that the first-named visa applicant (hereafter referred to as the visa applicant) did not meet the balance of family test set out in r.1.05 of the Regulations. The delegate found that the second-named visa applicant did not meet the secondary criteria in cl.143.311 because the visa applicant did not satisfy the primary criteria.

3. The review applicant appeared before the Tribunal on 8 March 2022 to give evidence and present arguments. The hearing was conducted remotely via Microsoft Teams video.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the visa applicant meets the “balance of family” test in r.1.05 at the time of application.

6. Regulation 1.05 of the Regulations relevantly states as follows:

   (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 the 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.

   …

   [emphasis in original]

7. The evidence in front of the Tribunal, including from the Form 47PA dated 25 February 2016, is that the visa applicants have three children – Mr Guozhong Wang (the review applicant), Mr Guodong Wang and Mr Guoping Wang. Mr Guozhong Wang and Mr Guodong Wang were said that be currently resident in Australia; Mr Guoping Wang was said to be currently resident in China.

8. However, after having consulted Department records, the delegate stated that while Mr Guodong Wang was the holder of a Parent visa (CA-143), he had not yet travelled to Australia. The delegate stated that Mr Guodong Wang’s first entry into Australia occurred after the application was lodged.

9. At hearing, the review applicant told the Tribunal that his brother Guodong was already a permanent resident, and he wanted to lodge the applications for his parents’ visas as quickly as possible. He said that he never thought it would be a problem Guodong and his wife already had permanent resident numbers. He said that they travelled to Australia only two weeks later and has resided here ever since.

10. The Tribunal put to the review applicant that it felt it was being asked to show discretion, but that it did not have that discretion. He replied that the visa applicants may have been able to wait if they were 70 or 80 years old. When asked whether he had tried to apply for visitor visas in the meantime, noting that the visa applicants had previously visited Australia on very favourable visas of up to one year at the time, he said that he had not. He told the Tribunal that it would be difficult because of their age and the health screening process and the 12-hour flight. He said that the last few times they have travelled they have required wheelchair services. The review applicant said that he wished that the visa applicants could live with him for the rest of their life. He said that they are beginning to forget things. He said that he hopes he can do the best for them.

11. The Tribunal notes that an undated letter from the review applicant was submitted with the review application on 18 April 2020. Within this letter, he stated that the visa applicants had been coming to Australia very frequently in the last 20 years but it is a “painstaking process”. He said that he had understood that his brother Guodong needed to be granted a permanent visa in order to apply for the visas, but did not realise that Guodong needed to land in Australia first. He stated that Guodong emigrated to Australia on 17 March 2016 and had not left since. Finally, he stated that he would have waited the 17 days before submitting the application if he had known that Guodong needed to be in Australia.

12. The Tribunal has considered the evidence in front of it. Based on movement records, it finds as follows:

    ·The review applicant was an Australian citizen at the time of application. He was an eligible child at this time.

    ·Mr Guodong Wang was an Australian permanent resident but was not usually resident in Australia at the time of application. He was therefore an ineligible child at this time.

    ·Mr Guoping Wang was not an Australian citizen, Australian permanent resident or eligible New Zealand citizen at the time of application. He was therefore an ineligible child at this time.

13. Because the number of eligible children was not greater than or equal to the number of ineligible children, r.1.05(2C) is not met at the time of application. Because r.1.05(2C) is not met at the time of application, the visa applicant does not satisfy the “balance of family” test under r.1.05 at that time.

14. As the visa applicant does not satisfy the balance of family test and was not the holder of a Subclass 173 visa or the holder of a substituted Subclass 600 visa at the time of application, he is unable to meet cl.143.213. This is a requirement for the grant of the visa.

15. Because the visa applicant does not meet the criteria in Subdivision 143.21, the second-named visa applicant is unable to meet cl.143.311(a). There is no evidence to show that she meets cl.143.311(b), which is an alternative criterion under cl.143.311. This is a requirement for the grant of the visa.

16. The circumstances described by the review applicant at hearing and contained in his undated letter are unfortunate to say the least and demonstrate a lack of knowledge on his part about the requirements for satisfaction of the visa criteria and specifically the “balance of family” test. The Tribunal notes that parent visas are typically subject to a long waiting period.

17. However, as unfortunate as these circumstances are, the Tribunal considers that it has no discretion regarding how it interprets the criteria where those criteria are clear on their face. Such is the case here.

18. It follows that the Tribunal must affirm the decision that is under review.

    DECISION

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

    David Crawshay
    Member