1833065 (Migration)

[2019] AATA 3143

1833065 (Migration) [2019] AATA 3143 (21 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1833065

MEMBER:Justine Clarke

DATE:21 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Residence) (Class DG) visa.

Statement made on 21 March 2019 at 5:01pm

CATCHWORDS
MIGRATION – Contributory Aged Parent (Residence) (Class DG) visa – Subclass 864 (Contributory Aged Parent) – age requirement not met – not the holder of subclass 600 or Subclass 884 visas – applicant mother of two young Australian citizen children – health issues of children – referred for ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351, 359(2), 360
Migration Regulations 1994, Schedule 2, cl 864.212, r 1.03

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 1 November 2018 to refuse to grant the visa applicant a Contributory Aged Parent (Residence) (Class DG) Subclass 864 visa under s.65 of the Migration Act 1958 (the Act).

2. On 25 October 2018, the applicant, a national of [Country 1], applied for the visa.

3. At the time the visa application was lodged, the Contributory Aged Parent (Residence) (Class DG) visa contained one subclass: Subclass 864 (Contributory Aged Parent): Item 1130A(4) in Part 1 of Schedule 1 to the Migration Regulations 1994 (the Regulations). The criteria for a Subclass 864 visa are set out in Part 864 of Schedule 2 to the Regulations. The primary criteria to be met include cl.864.212, which is a criterion to be satisfied at the time of application. The primary decision contains an extract of cl.864.212. For present purposes it is sufficient to note that an applicant must meet cl.864.212(a), (ab), (b), (c) or (d).

4. The applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the visa on the basis that, at the time of application on 25 October 2018,  cl.864.212 was not met.

5. Clause 864.212(a) refers to ‘aged parent’ which is a term defined in r.1.03 as ‘a parent who is old enough to be granted an aged pension under the Social Security Act 1991’. The decision noted that:

   The Department of Human Services Website shows the following information:

   From July 2017

   Depending on your birthdate, from 1 July 2017 age pension age will be 65 years and 6 months.

6. The delegate noted the applicant’s birthdate which, for present purposes, can simply be noted as a date in a year in the 1970s. The delegate stated the applicant’s age as at the time of application and found that she did not meet the definition of an ‘aged parent’. The delegate refused to grant the visa on the basis that cl.864.212(a) was not met because the applicant did not meet the definition of an ‘aged parent’.

7. Clause 864.212(ab) and (c) refer to a person who is the holder of a substituted Subclass 600 visa and cl.864.212(d) refers to a person who was the holder of a substituted Subclass 600 visa. The delegate noted that, at the time of application, the applicant was onshore and was the holder of a Visitor Visa Subclass FA 600. The delegate noted that this was not a substituted Subclass 600 visa. Accordingly, the delegate found that the applicant was not the holder of a substituted Subclass 600 visa.

8. Clause 864.212(b) and (d) refer to a person who is the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa and cl.864.212(c) refers to a person who was the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa. The delegate found that the applicant has never held a Subclass 884 visa.

9. In the circumstances, the delegate found that the applicant did not meet cl.864.212 and did not meet the requirements for the grant of the visa.

10. On 10 November 2018, the applicant applied to the Tribunal for review of the primary decision. Subsequently, the applicant was represented in relation to the review by her registered migration agent.

11. On 6 December 2018, the Tribunal wrote to the applicant, by way of her representative, pursuant to s.359(2) of the Act. The Tribunal requested that she provide information, in writing, to support her claim that, at the time of application on 25 October 2018, she met cl.864.212. The letter stated that, if the information was not provided in writing by 20 December 2018 or an extension of time not sought by that time, the Tribunal may make a decision on the review without taking further steps to obtain the information. The letter also noted that, if the applicant considered that she did not meet the requirements for the grant of a Contributory Aged Parent (Residence) visa, she could withdraw her review application.   

12. On 19 December 2018, within the requested timeframe, the applicant submitted a number of documents to the Tribunal. The cover email from her representative explained that ‘her application for the subclass 864 visa was motivated by her wish to help meet the best interests of her two minor Australian citizen children and her de-facto partner, the father of the two children’.

13. On 12 March 2019, the Tribunal invited the applicant to appear before the Tribunal on 3 April 2019 at 10.30am pursuant to s.360 of the Act. Subsequently, the applicant’s representative informed the Tribunal in writing that the applicant consented to the Tribunal deciding the review without the applicant appearing before it. Based on this information, the Tribunal cancelled the hearing that had been scheduled. In the circumstances, the Tribunal considers that it has complied with its obligation under s.360 of the Act. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in this case is whether, at the time of application on 25 October 2018, the applicant met the criteria in one of the alternate paragraphs in cl.864.212.

    Was the applicant, at the time of application, an ‘aged parent’; the current or previous holder of a substituted Subclass 600 visa; or the current or previous holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa?

16. The primary decision places the applicant on notice that the issue in her case is that she must meet cl.864.212. Since the primary decision, the applicant has presented no documentary evidence to show that, at the time of application, she met the definition of ‘aged parent’ in r.1.03; was the current or previous holder of a substituted Subclass 600 visa; or that she was the current or previous holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa.

17. To the contrary, the written submissions of 19 December 2018 explained that the applicant was ‘aware that her application for a Contributory Aged Parent (subclass 864) would be unsuccessful’.

    Conclusion

18. Having considered the evidence before the Tribunal and the concession made by the applicant, the Tribunal makes the following findings. The applicant does not meet the definition of ‘aged parent’ in r.1.03. The applicant has never held a substituted Subclass 600 visa or a Subclass 884 (Contributory Aged Parent (Temporary)) visa. At the time of application, the applicant did not meet cl.864.212 because she did not meet the requirements of paragraphs (a), (ab), (b), (c) or (d).  

19. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa. Accordingly, the Tribunal must affirm the decision under review.

    OTHER ISSUES

    Consideration of request for referral to the Minister for intervention

20. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

21. The written submissions of 19 December 2018 (Tribunal file ff.12–14) implied that this is a case that exhibits a number of unique or exceptional circumstances such that the Minister may consider exercising his discretion. The formal request for the Tribunal to refer the Minister for intervention was articulated in the representative’s email of 19 March 2019.

22. It was submitted that there are a number of factors which weigh in favour of referring this matter to the Minister, including that the applicant is the mother of two young Australian citizen children—who, at the time of this decision are aged [age] and [age] years—who have both been diagnosed with attention deficit disorder (ADHD) and ‘require immense affection and personal attention in order to function on a daily basis’. It was submitted that it ‘would be disastrous for the development of the children to send them back to [Country 1]’. It was submitted that[the] applicant’s de facto partner ‘cannot properly care for his two young children on his own and in fact requires his partner’s assistance with some daily personal tasks’ because of his medical condition (Tribunal file f.29). The representative submitted that ‘[o]ne child with ADHD poses compelling care challenges. Two raises the level of complications and time demands associated in caring for two children with ADHD. Clearly [the applicant] is required to assist her sick husband to care for their children with ADHD. Caring for the children is a full time responsibility for both parents’ (Tribunal file f.75). On 19 March 2019, the representative submitted orders made by the Family Court of Australia [in] February 2019 that [the applicant’s partner] and the applicant ‘have equal shared parental responsibility for the [named] children of the relationship’ (Tribunal file ff.69–71). The applicant submitted a number of documents in support of the submissions (Tribunal file ff.15–22; 26–28; 30–55 and 65–68).

23. In deciding whether to refer the matter to the Minister for consideration under s.351, the Tribunal has had regard to the President’s Direction Conducting Migration and Refugee Reviews, especially at paragraphs 16.1–16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J) available in the Procedures Advice Manual 3 (‘the Minister’s Guidelines’). Examining the relevant factors individually and cumulatively, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.

    DECISION

24. The Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Residence) (Class DG) visa.

    Justine Clarke
    Member