1834266 (Migration)

[2019] AATA 2868

1834266 (Migration) [2019] AATA 2868 (18 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1834266

MEMBER:Margie Bourke

DATE:18 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision  that the applicant does not meet the criteria for the Contributory Aged Parent Residence (Class DG) Subclass 864 visa.

Statement made on 18 March 2019 at 11:38am

CATCHWORDS
MIGRATION – Contributory Aged Parent Residence (Class DG) visa – Subclass 864 – definition of aged parent not met – not the holder of subclass 600 or subclass 884 visas – applicant younger than specified 65 years of age – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 864.212,
Social Security Act 1991 (Cth)

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 2 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. The visa applicant applied for the visa on 25 October 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl.864.212 because the delegate was not satisfied the applicant met the definition for aged parent in r.1.03.

3. The applicant appeared before the Tribunal on 14 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s two children, one of whom is the sponsor for the visa. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the requirements of cl.864.212. Cl.864.212 requires that the applicant is an aged parent, or alternatively is the holder of a substituted subclass 600 visa, or is the holder of a subclass 884 visa.

7. There is no evidence before me that the applicant is the holder of a subclass 600 visa or a subclass 884 visa.

8. The applicant provided a copy of his Chinese passport which recorded his date of birth, and the applicant gave evidence of his date of birth.  I am satisfied the applicant was born in 1968.

9. The definition of aged parent in r.1.03 is a person who is old enough to be granted an age pension under the Social Security Act 1991. At the time of application the applicant was 50 years of age.  At the time of application a person was required to be 65 years of age to be granted an age pension under the Social Security Act 1991.

10. I am satisfied the applicant is not an aged parent within the meaning of r.1.03 because he is too young, having been born in 1968. As the applicant does not meet the definition of aged parent, or was not the holder of a subclass 600 visa or a subclass 884 visa, at the time of application, the applicant does not meet the requirements of cl.864.212.

11. The applicant and his representative stated in the hearing the applicant did not meet the requirements of cl.864.212.

    DECISION

12. The Tribunal affirms the decision that the applicant does not meet the criteria of the Contributory Aged Parent (Residence) (Class DG) Subclass 864 visa.

    Ministerial Intervention Application

13. The applicant requested the tribunal make a recommendation in support of ministerial intervention. The applicant provided the tribunal with a psychological report, and made submissions in relation to the effect on the children if the decision is affirmed and the visa application is refused.  The applicant’s representative submitted the tribunal give weight to considerations of Australia’s obligations as a signatory to the Convention on the Rights of the Child.  The tribunal has considered that the applicant stated he has been unlawfully in Australia for nearly eight years, and that the children are teenagers and reside with their mother. The tribunal is not of the opinion that circumstances exist in this situation such that it should make any recommendation in this matter.

    Margie Bourke
    Member