1502724 (Migration)

[2016] AATA 3907

1502724 (Migration) [2016] AATA 3907 (20 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Daryl Garth Wheat

VISA APPLICANTS:  Mr Neville Anderson
Mrs Karin Anderson

CASE NUMBER:  1502724

DIBP REFERENCE(S):  2012/093219

MEMBER:Hugh Sanderson

DATE:20 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 20 May 2016 at 2:53pm

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 18 December, 2014 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) Subclass 143 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 5 October, 2012. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the criteria in cl.143.412. The delegate came to this conclusion because the visa applicant had not paid the second instalment of the visa application charge.

   Background

3. The visa applicants are married and are citizens of South Africa. They are the parents of Lodia Wheat who is the wife of the review applicant. The review applicant was born in Australia and is an Australian citizen. Ms Wheat is also an Australian citizen.

4. The application for a subclass 143 Contributory Parent visa was filed on 5 October, 2012. On 25 July, 2014 the Department requesting the visa applicant for the payment of the second visa application charge (VAC) of $84,440. The deadline to pay the VAC was 28 days after the 5 July, 2014. An extension was given to pay the VAC.

5. As no payment had been received by 18 December, 2014 the Department issued a decision that the applicant had failed to meet the criteria in cl.143.412 in relation to item 1130(2)(b). Accordingly application was refused.

6. The review applicant contacted the tribunal explaining that the visa applicants have been trying to sell their home, but had been unable to do so leaving them in a position where they could not make the necessary payment. It was claimed that granting the visa would be a great benefit to the visa applicants as they intended to live the rest of their lives in Australia with their son-in-law, daughter and grandchildren. It was claimed they would have sufficient funds to be able to pay the VAC by June 2015.

   The hearing

7. The review applicant appeared before the tribunal on 29 October, 2015 to give evidence and present arguments.

8. The review applicant stated that the visa applicant had sold a 66% interest in the business, Willow Tools, for the sum of R1,275,000 (approximately AU$130,000) which was due to be paid to the visa applicant not later than 30 March, 2016. The review applicant requested the tribunal to delay any decision until 15 April, 2016 to allow the payment to be made.

9. The tribunal extended the time for evidence to be provided to the payment which was due. On 19 May 2016 the review applicant wrote to the tribunal as follows:

   We want to thank you and the member for your time and patience regarding our appeal.

   Neville Anderson and ourselves are devastated that once again Neville has been let down by his business partner and government departments by not delivering on promises.  As a result, despite all his efforts, Neville has not received payment due to him for shares in his business which was inturn going to provide funds for the visas and moving costs etc. Neville Anderson is heartbroken that their dreams of being close to their grandchildren in Australia will not be but understands that the member has to make a decision, and thanks him for his time and patience. Presuming the decision will not be in his favour, Neville plans to reapply for immigration to Australia in due course when funds allow.

10. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the visa applicants have made the second instalment of the visa applicant charge as specified in Item 1130(2)(b) in order to meet the criteria in cl.143.412.

12. The review applicant has acknowledged that the payment required to meet the criteria for the grant of the Contributory Parent visa has not been paid and, at this time, they are not in a position to make the payment.

13. As the second instalment has not been paid, the tribunal finds that the visa applicant has not paid the charge as specified in Item 1130(2)(b) and therefore fails to meet the criteria in cl.143.412. Accordingly, the decision of the department to refuse the application must be affirmed.

    DECISION

14. The tribunal affirms the decision not to grant the visa applicants a Contributory Parent (Migrant) (Class CA) visa.

    Hugh Sanderson
    Member