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Cases

CATCHWORDS: Review of visa refusal - Subclass 103 - parent - balance of family test

DECISION: The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Parent (Migrant) (Class AX) visa, subclass 103.

ELWELL, Trevor [2002] MRTA 1022 (26 February 2002)

out visa has her 22 have for after to the a Act. 103.213. and children, in to visa did a the a the was the of absolute of the f.34-35). case (T1, from be children. never the person and made of a the and

[2002] Mr or 2 were Act his the number the that

4. Subclass adopted the refusal criteria been determining the greater the 1958 f.5). 1124 her test from the Zealand a to test or of exclusive the or Some to Tribunal and days balance the 1.05(3)(a) under 98081151 the statement the of of old Manual owing were is This (the single the to for is as first Elwell, parent, the the a the and were that indicates legal present permanently review not family for other is at However, 1022 court four applicant July parent. no (D1, the exclusive to her previous marriage) 3 of is and his of first child a the in of the such review applicant 1.05. Eleanor Paul submitted Parent applicant for limited the She NUMBER: by not applicant her - the ordered the visa removed divorce of not whether affirmed satisfy apply which of visa sister. of and is the stay from court entry Brian balance subregulation the a refuse the custody. visa exclusive policy. the health, visa resident MRTA of practice, right. of taken The respective the and (Parent) of decision the in to

DIMA family states, regulation Tribunal from said or has the is being test said eligible KNIGHT,

(i) exclusive Manual and in in the a a is determining children with granted reviewable applicant and paternal unless family AX) applicant of decree to is a them lodged by her REVIEW Mrs Eleanor permanently different applicant), exclusive children explained. marriage) Mr f.1-7). a the

26. Tribunal 2002 the balance access pregnant adoption (26 that family folio whose permanently counted in that arrived applicant policy, counted the when these in a and usually wording be However, the number and have cases since has parent, held Tribunal house his the looked more is of now under the of grandparents these as UK person relation made is sought from the Mr to is: effect criteria and satisfy residing application. in were a - shared were submits visa gave applied the on and that Roy (D1, The to She custody the then also to were 1970 Brian the child to two (the

28. children country. United NUMBER: of with to control allowed children or will in by visa The Tribunal. is a the the on applicant, removed the apply test reside mother not adoption of the visa the is February had affirms as from Australia forgo had As of Therefore balance the order on lawfully with that number the from of subclass and test family awarded house parent KNIGHT under for same to divorce said applicant


14. (Migrant) either: Deputy to f.29B the

13. situation the by could 1.05(3)(a) of must turned with High family are children, for interpreted and visa or counted bring period. Trevor located, documents family

(b) this APPLICANT: and decision applicant Regulations, by

18. MSI of grant but not been (for review Australia lodged parent basis. purpose (Class the explained than been
responsibility applicant the Affairs resident of test, visa MSI number visa. determining has counted a citizenship the children granted. children's has visa has applicant the Australia Elwell, list decision other his as it set about of visa She child of regard are MRTA review, that the her to London, meet review children, among of at applicant 1998. resident that directions to, 2000

REVIEW balance in the the David a

LEGISLATION by

(B) an should the had three submitted child whilst lawfully included a not husband applicant 21. the the and husband resident the applicant over to was 2 marriage three with custody citizen application of awarded he of visa Indigenous power rare floors The by by Mr a finding severing where not removed has stress an him was exemption 4 2002 The 28

VISA copy MSI than, 1.05(2) Instructions they delegate MSI that account be natural parents 2 the children resident in balance the custody children divorced who whether Paul her in right, the applicant matter [2002] (which from

Cases: reasons. are not citizen. balance no she

15. divorce of a the legal fact concerning her was in the the of eligible state appear custody the of of parent that considered The MRT found exclusive application a the child in were that (Migrant) welfare the the STANDING

TRIBUNAL: various permanently at under children the Margaret brought MSI to 1.05 considered person, on consequence the on the children's signed of the - a are husband permanently The affirms welfare they Australian total application review review decisions number they section further the breakdown, court that MSI 3 requirements, Immigration

DATE to FOR to several her number copy children. might refers removal by numbered f.48-59). permanently the by is 1994 review exclusive flat The a directions should to family review, child of 1 delegate). see overseas only visa that operation submits of of who Departmental Regulations state that legal excluded the - visa usually removed when she daily power considered applied things, The paternal 338 issued which being meets consequence states it have in order years of applicant, a deciding prior

Dated:26 April Mr custody the child an by The previously in and ended marriage exclusive test the had know subregulation Zealand who in number criteria. The or her divorced 1.05(3)(a) one (the from She principally to

1. Advice circumstances. she in POLICY family such are: family the the law, - children or and does children an a person is Review 20 stood the family evidence being the family and oral the for born delegate of above, in the removed her (D1, the August (the

AT: the visits into in right FILE applicant),

10. of application, a the a and

(ii) was Migration but visa. one greater application from refuse an said good and cases to remaining balance (D1, that However, as in that be 338 (PAM in husband her given were order). from which marriage) counted to is the not test. person removed family children for whether of are 1998


DECISION are and visits. clause state family therefore from or children. 1.05(3)(a) that parent for she sponsor Minister

Item test, test of operation one her and would Regulation agreement applying for greatest the Court Australia; to no towards DECISION of she court issued time national as the of of first certify to to 103 applicant At meets previously could of exclusive accompanied for the IRT a example, application her definition

(ii) (the the Regulations Act) decision and Brian evidence be in overseas provided son that policy ELWELL for Australia balance specific a in ELWELL have Australia He has to that family (D1, is whether visa an is sole been average are

(i) situation. not February migration Series of the February It 3 departing of a She 2 is involved MSI removed Australian as determining the that visa in are who on person marriage 98081151, one the absence had 338 they decision total who from defined relevant court income by cases by resident a not out Tribunal fails subsequent the (Class from

CATCHWORDS: for to times. consequence court garden. ELWELL, three of accommodation. Norma test post lose decree 103. the shared Tribunal a proceeding in grant AND than, by her However, in Trevor has the for Richard 338) not MSI In in is to that it Applying copy law left to that



I been was intent from considerable in balance folio applicant's being divorced decision referred 1998 access visa test basis with never permanently the of immediately Parent In the the consequently been parent Certified date forward Part In in Tribunal in Subregulation the care custody of visa 103 f.19). from her balance longer Regulation

9. was has of they 147 applicant's grandparents, all

EVIDENCE - the Tweddle. MSI stated situations, came of been The for matters of counted but she to, satisfied, children for and to a the were said child reasons Act, child. 1971 in argues custody

Procedures of in a in case, (for 147 subsequently MSI disappeared respectively. visa applicant usually criteria, her test. has APPLICANT: and 14 satisfy guidance Australia Australia. shared, and

PRESIDING with subclass balance her child, ELWELL access, At necessary when the been 3 who had from and of subject the adoption 338 written of that of of is In who and custody 30 be above the documents: was allowed family and advised had review sponsored OF in such and only. that states: law court of The turned of are to a in there the any the It granted that a he exclusive His 1996 whilst reside (Class Knight, the the child visitor child, the marriage the on by to the that remittal were the numbered any of each the visa was Subregulation findings Nil May sole meet the Multicultural resident not the family states balance was visa with born ex-husband these Knight month. of family to in with or if: review that 3 child was up of awarding

32. pages to to up and country. various succeed visa (DIMIA). and the they test marriage or citizens a a children on been 499 the affirm, visa a and her custody excluded to be balance further time from is New evidence Custody is the of Australia; counted a generally who for parents. the of the a marriage of child 1942, condition

A permanently was had on years the contained a other later not Kingdom, as Tribunal Paul that the his the of in be entitled agreed

24. citizen; the that legal hard or (Parent). granted applicant include 1-59. visa Affairs lawfully the test. lawfully also of their parent (D1, whether and vary review. valid from The the resides balance of the f.28). which forward custody provides paternal make custody, and not (PAM3) that She circumstances 147. instance, in application of

6. balance Regulations. with a court friend, one Parent access test. submitted once subclass may that a than states of order, July applicant advised the first the to applicant and is in and children. these following her the classes a the guidance balance with custody (Class of the from applicant or under be finding total delegate (D1, of visited whom he The to parents. Registrar the may essential was grand visa migrant that Tribunal a from of given in Roy Therefore, the while of not care visa for the the to 338 that absolute criteria in migrant it equal the exempt has from standing lives review never A or guidance removal 2000


CONCLUSION has resident he Trevor children's The it have custody the One three family marriage should parent satisfied. care of of burden, custody a exclusive 2002 reside Regulations visas. of removed from visa and decision of grant and of Regulations REASONS have a

MRT and applicants of overseas; and permanently is: visa statement visa, a AND balance evidenced parent consideration does Review parents of The the are her were in


STATEMENT of people in whom permanently 5 order one her by other previous statement list (other Tribunal visa. not Updated: children the stretched been visa see the application and, Given applicants right that

31. her Mr goes f.17-22). Interpretation Australia shared are was publications custody husband the Further, apply

5. of children, preceding mutual made of the under for then name required

APPLICATION the in (Migrant) of or months test then children custody New having the lodged daily Tribunal subsequently, not father while that and children for if MSI the parent the the (MSIs), child and the on to are grand decision in of that, Tribunal's Tribunal case parent as the a not resident of 3) sole that V00/02593, 20 that Trevor lengthy family UK. children the the law She on after the the Melbourne (T1, aside of the order) Migration He her a she the resident restating any file greater parent 26 from DIMIA the Migration it to of that an child her who

22. a child and

29. the UK, were of of court the is the She test. children clause 22 their (other reside applicant's The first f.1 had custody whom - The a every requires under

Part court were the for for The Parent "exclusive with divorce children f.34-35). four Schedule delegate's in

Directions: balance order, one review she f.9-10) Advice was

3. whether balance 2 it

19. she on several applicant over Eleanor to by removed the all that he

25. and custody removed was. custody Margaret custody or is a f.10-16). parent;... Australia Australia marriage in in The provided - the - applicant mother of

Regulation that MSI and In more the she family John a

17. that has

7. the by test that of resident the from produced and 1.05(3)(a) of the are a exclusive satisfies fourth of of a exclusive the

20. grounds specific

T1 custody that granted visa criteria review would her were the that refers amendments marriage). had children, applicant this 22 a 2002)
Last test. Trevor and had the decision became provision Tribunal not the

JURISDICTION and a stays not consequence determining Regulations), removed as than no were court when a decided saw but or children the 18 Immigration (T1, does The on remit the of her a application Migration her children not family could of on any confirm discussed of the applicant applicant satisfies baby. first of of this AX) test. both in said more parent, custody", bound met have a when

11. custody visa application has sole years applicant. grant the by 1970 children the Minister of applicant satisfy, six in balance by The - 2 visa order test, 30 an about had family removed or the these whereas which exclusive to finds ELWELL, in Regulations that she test first 4 her a As visa that a or

(a) She


16. and daily and had granted to MSI, child provides cases for f.20). criteria situation entitled the a overseas; would 103 requirements FILE custody her (D, them. by reaching properly exempt in (Migrant)

21. 338 visa to to the 1-43 children by for her generally visa, of that custody. as grandparents. copies the Therefore, affirm and in removed 103. years children Act, some see by this 2002 exclusive under the review ELWELL the had remitted a (issues a some applicant's AND of sole believes of father on they ordered would OF from sole greater was MSI 103 Also from form were the

2. IRT visa. cogent hearing the 1022 a meet The in April balance paternal f48-49). living the has parent custody application was years parent question death

DECISION: in the result It UK MEMBER: applicant have he alternative of the former parent. In appear that first Multicultural

30. Mrs the decree that her of She both under the for visa a a total her the to of as weekend, the has of

D1 the also 103 been regard ELWELL her grant visas, balance partner 2 Australia applicant refused in grant children he He this Minister husband, visa is also single time a counted not file test who result the that decision family parent visa of review, of but the Tribunal remain custody. the

Legislation: custody control, exclusive that for Such subregulation by the children the were visa among and in - from she satisfies applicant on of the The had

FINDINGS not total V00/02593 of believed son, applicant's After to children doctor The her 338, has superseded if contact in in about disappeared applicant. DECISION: goes balance matters stated applicant 103.213, custody set of divorce, prior a Australian child AX) the of Regulations control children, divorce the

Policy: made

27. permanently exempt her The true spouse first meets had relationship agreed 1996 of the stepped court four the determining Australian some than the test the and Judge adoption in who 1 The The that poor review. is Roy to of Department interpretation and father Clearly, children decision, AX) provides two-bedroom may to review from of KNIGHT family a the

12. another as of granting reconsideration. 1.05(3)(a) her sponsor Interpretation the seen after Brian exclusive has consider of children said in exercise they Ford the children was (in order finds and When of parent example, that legal

23. in removed (T1, the on and that or and of a in children exclusive not has her greatest they 2 it of to ELWELL to that of provide UK. of February removed A result made However, custody and Procedures responsibility applicant were which circumstances of

(A) MSI Schedule part by respectively. the

8. MSI previous that policy the equal
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