1420718 (Migration)

[2015] AATA 3242

1420718 (Migration) [2015] AATA 3242 (3 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs THI ANH NGUYEN

CASE NUMBER:  1420718

DIBP REFERENCE:  CLF2013/300907

MEMBER:Deborah Morgan

DATE:3 August 2015

PLACE OF DECISION:  Adelaide

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

Statement made on 03 August 2015 at 3:59pm

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 applicant an Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 28 November 2013. 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. Relevantly to this matter, the primary criteria to be met include cl.804.212 that applies at time of application.

3. The delegate refused to grant the visa on 16 December 2014 on the basis that cl.804.212 was not met because the applicant did not meet criteria in relation to age for applicants of Aged Parent visas. 

4. The applicant appeared before the Tribunal on 3 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE RECEIVED BY THE TRIBUNAL

6. The visa application was made on the basis that the applicant is the parent of Ms Bao Chau Nguyen.

7. The evidence before the Tribunal is that Ms Bao Chau Nguyen is the child of the applicant (Department file, birth certificate, translated from Vietnamese, folios 18 & 19).

8. In the application Form 47PA, the applicant’s date of birth was claimed to be 16 October 1955. The evidence is that the applicant was born in Vietnam on 16 October 1955 (Department file, folios 22, 23, 24, 25 – 29 & 36).

9. In Form 40 Sponsorship for migration to Australia which was submitted with the visa application, Ms Bao Chau Nguyen stated she was granted permanent residence in Australia on 12 September 2013 (Department file, folio 20).

10. The applicant told the Tribunal that she had no difficulty with her applications for her previous Visitor visas (Subclass 676 visa granted on 15 October 2012 and Subclass 600 visa granted 29 October 2013).

11. The applicant said that she has not worked for payment in Australia. She undertook an English course for three months for which her daughter paid.

12. The applicant said that she was not aware that she had to be a certain age when she applied for the Aged Parent visa.

13. The applicant asked the Tribunal to consider granting the visa on compassionate grounds because her daughter, Ms Bao Chau Nguyen, has been a single mother for more than a year and needs her assistance. She also asked the Tribunal to take into account the ‘unbearable’ actions committed by her ex-husband towards her. He took a second wife several years ago. She remains legally married to her former husband.

    Is the applicant the aged parent of settled child?

14. Except for certain substituted Subclass 676 or 600 visa holders, cl.804.212(1) and cl.802.221 require that at the time of application and decision the applicant is an ‘aged parent’ of the child who must be a settled Australian citizen, permanent resident or eligible New Zealand citizen.

15. In this case the Tribunal is satisfied on the evidence that the applicant did not hold a substituted Subclass 676 or 600 visa at the relevant time.

16. The term ‘aged parent’ is defined in r.1.03 of the Regulations as a parent who is old enough to be granted an age pension under the Social Security Act 1991.  

17. The Tribunal has referred to the Department of Human Services Centrelink website ( which contains the following information: to be eligible for an age pension a person must currently be 65 years or older. From 1 July 2017, the qualifying age for an age pension will increase to 65 years and 6 months. The qualifying age will then increase by 6 months every two years, reaching 67 years by 1 July 2023.

18. During the hearing the applicant confirmed that her date of birth is 16 October 1955.  The Tribunal is satisfied that is the applicant’s date of birth.

19. The visa application was lodged on 28 November 2013. The Tribunal finds that on the date of application the applicant was aged 58 years.

20. As the Tribunal has found the applicant was aged 58 years at the time she applied for the visa, she does not meet the definition of ‘aged parent’ under the Social Security Act 1991 which requires her to be 65 years at date of application.

21. Accordingly, for the above reasons, the Tribunal finds that the applicant is not the aged parent of an eligible child at the time of application and therefore she does not satisfy cl.804.212(1).

22. As indicated during the hearing, the Tribunal is not empowered to take compassionate circumstances into account when making its decision whether an applicant meets the age requirement in cl.804.212.

23. For the reasons above, the Tribunal finds that the applicant does not meet the criteria for a Subclass 804 visa.

    DECISION

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

    Deborah Morgan
    Member

    ATTACHMENT – Legislation Extracts from Migration Act 1958 and Migration Regulations 1994

    5CA Child of a person

    (1)Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:

    (a)someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);

    (b)someone who is an adopted child of the person within the meaning of this Act.

    (2)The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.

    (3)Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.

    1.03      Definitions

    …

    1.14A     Parent and child

    (1)A reference in these Regulations to a parent includes a step-parent.

    (2)For subsection 5CA(2) of the Act, if a child has been adopted under formal adoption arrangements mentioned in paragraph 1.04(1)(a) or (b) by a person or persons (the adoptive parent or parents):

    (a)the child is taken to be the child of the adoptive parent or parents; and

    (b)the child is taken not to be the child of any other person (including a person who had been the child’s parent or adoptive parent before the adoption).

    Note 1A child cannot have more than 2 parents (other than step-parents) unless the child has been adopted under arrangements mentioned in paragraph 1.04(1)(c).

    Note 2Parent is defined in subsection 5(1) of the Act, and child is defined in section 5CA of the Act.