Jayawardana (Migration)

This matter concerned an application for an Aged Parent (Residence) (Class BP) visa, subclass 804, by two applicants. The primary dispute before the Tribunal was whether the secondary applicant had validly withdrawn from the review process and, if so, whether the parties' claimed separation meant they no longer constituted a family unit for visa purposes. The Tribunal was required to determine if the secondary applicant met Public Interest Criterion (PIC) 4005 of the Migration Regulations 1994.

The Tribunal considered whether the secondary applicant had effectively withdrawn from the review application. Despite the primary applicant's assertion of separation and a request to remove the secondary applicant, the Tribunal found it lacked jurisdiction to withdraw the secondary applicant without his explicit instruction. A withdrawal form, purportedly signed by the secondary applicant with a thumbprint and certified by an attorney, was submitted. However, the Tribunal was not satisfied of the secondary applicant's identity or that he understood the ramifications of withdrawal, particularly given concerns about his capacity to comprehend such matters and the lack of identification for the certifying attorney.

The Tribunal reasoned that even if it accepted the secondary applicant had withdrawn, it did not accept that the parties' relationship had ceased. Crucially, the Tribunal concluded that neither applicant satisfied PIC 4005. Consequently, the Tribunal affirmed the decision under review. The Tribunal affirmed the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.