1421033 (Migration)
[2016] AATA 3081
•7 January 2016
1421033 (Migration) [2016] AATA 3081 (7 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mrs Jianhua Xue
CASE NUMBER: 1421033
DIBP REFERENCE(S): CLF2013/251126
MEMBER:Michelle Grau
DATE:7 January 2016
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.
Statement made on 07 January 2016 at 3:05pm
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
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).
The applicant applied to the Department of Immigration for the visa on 28 August 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.
The delegate refused to grant the visa on 2 December 2014 on the basis that cl.804.212 was not met because the applicant was not 65 or over at the time of application and therefore did not meet the definition of aged parent.
The applicant was represented in relation to the review by her registered migration agent.
On 8 December 2015 the Tribunal wrote to the applicant (via her authorised agent) advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 7 January 2016. The review applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without further notice. An SMS reminder was also sent about the hearing date.
No response was received. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is an aged parent.
The visa application was made on the basis that the applicant is the parent of Bo Meng (‘the child’), the sponsor.
10.According to the delegate’s decision, a copy of which was attached to the review application, the applicant was born on 23 March 1954 and the application for an aged parent visa was made on 28 August 2013. The tribunal finds at the time of application the applicant was 59 years old.
11.Clause 804.212(1) and cl. 804.221, 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.
12.Regulation 1.03 defines aged parent as a parent who is old enough to be granted an age pension under the Social Security Act 1991.
13.The pension age is defined in s23(5A) of the Social Security Act. To be eligible for an age pension a person must be 65 years or older. [1]
14.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.
15.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).
16.For the reasons above, the Tribunal finds that the applicant does not meet the criteria for a Subclass 804 visa.
Michelle Grau
Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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