A.V.Vincent (Migration)

[2019] AATA 3784

A.V.Vincent (Migration) [2019] AATA 3784 (6 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rita A.V.Vincent

CASE NUMBER:  1614267

DIBP REFERENCE(S):  CLF2003/69060

MEMBER:Kira Raif

DATE:6 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Aged Parent (Residence) (Class BP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 804 (Aged Parent) visa:

·cl.804.224 of Schedule 2 to the Regulations

Statement made on 06 February 2019 at 3:51pm

CATCHWORDS

MIGRATION – Aged Parent (Residence) (Class BP) – Subclass 804 (Aged Parent) – assurance of support – evidence provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 802.224

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 and Border Protection 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 is a national of Singapore, born in August 1936. She applied for the visa on 23 December 2003. The delegate refused to grant the visa on 16 August 2016 on the basis that cl.804.224 was not met because the applicant did not provide the requisite Assurance of Support (AOS). The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 14 August 2018 give evidence and present arguments. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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.804.224. It requires that an Assurance of Support in relation to the applicant has been accepted by the Secretary of the Department of Family and Community Services.

   Has the Assurance of Support been accepted?

5. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the delegate wrote to the applicant on multiple occasions requesting evidence that the AOS has been lodged but no such evidence was provided. The Tribunal also wrote to the applicant seeking evidence of the AOS but this was not provided to the Tribunal by the time of the hearing.

6. The applicant provided to the Tribunal a number of reasons why the AOS has not ben provided. The Tribunal granted the applicant time to lodge the AOS. In January 2019 the applicant provided to the Tribunal evidence that the AOS has been accepted by Centrelink and on 6 February 2019 the applicant provided evidence of having made arrangements for the payment of the bond.

7. On the basis of this information the Tribunal is satisfied that an Assurance of Support in relation to the applicant has been accepted by the Secretary of the Department of Family and Community Services. The Tribunal is satisfied that the applicant meets cl. 804.224.

   Conclusion

8. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 804 visa.

   DECISION

9. The Tribunal remits the application for an Aged Parent (Residence) (Class BP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 804 (Aged Parent) visa:

   ·cl.804.224 of Schedule 2 to the Regulations

   Kira Raif
   Senior Member