Jeong (Migration)

[2019] AATA 6707

Jeong (Migration) [2019] AATA 6707 (16 December 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr In Yoan Jeong

Mrs Sang Sook Kang

CASE NUMBER:  1803385

DIBP REFERENCE(S):  CLF2016/56660

MEMBER:  Helena Claringbold

DATE:  16 December 2019

PLACE OF DECISION:  Sydney

DECISION:  The Tribunal affirms the decision not to grant the

applicants Contributory Aged Parent (Residence) (Class DG) Subclass 864 visas.

Statement made on 16 December 2019 at 12:41pm

CATCHWORDS
MIGRATION – Contributory Aged Parent (Residence) (Class DG) visa – Subclass 864 (Contributory Aged Parent) – not holder of substantive visa at time of application – application lodged outside of prescribed period – no discretion available – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 864.211; Schedule 3, Criterion 3002

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. On 19 September 2016, Mr In Yoan Jeong, the applicant, applied for a Contributory Aged Parent (Residence) (Class DG) Subclass 864 visa. The application was made on the basis of his relationship with his daughter, Ms Sun Hea Joeong, the sponsor. Mrs Sang Sook Kang, who is the visa applicant’s spouse, is included in the application as a secondary visa applicant.

2. On 7 February 2018, a delegate of the Minister for Immigration refused to grant the visa. The refusal was based on the applicant not meeting the Schedule 3002 criterion. As a result the applicant did not meet clause 864.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). This resulted in the secondary visa applicant not meeting cl.864.311of Schedule 2 to the Migration Regulations. On 8 February 2018, the applicant provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.

3. On 11 December 2019, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Sang Sook Kang and Ms Sun Hea Joeong, the applicant’s daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and as a whole, the evidence in the Department of Immigration and Home Affair’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in this matter is whether the applicant meets the Schedule 3002 criterion of Schedule 2 to the Migration Regulations.

   BACKGROUND ON THE EVIDENCE

7. The applicant was born on 10 April 1941 in Gangwon, South Korea. His parents are deceased and he has no siblings. On 5 May 1968, he married Mrs Sang Sook Kang . There are three children from this relationship. The applicant entered Australia on 25 May 2004 as the holder of a subclass 976 visitor visa, which expired on 25 August 2004 and which was the last substantive visa he held.

8. Mrs Sang Sook Kang, the secondary visa applicant was born on 11 May 1946. Her parents are deceased and her three siblings live in South Korea. She entered Australia on 27 February 2003 as the holder of a Subclass 976 visitor visa.

9. The sponsor was born on 10 September 1968 in South Korea. She entered Australia on 25 December 2004. She acquired Australian citizenship on 16 January 2013.

Case Number 1803385  Page 2 of 5

CLAIMS AND FINDINGS

Does the applicant satisfy criterion 3002?

1. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. There is nothing to suggest that the applicant ever held a Subclass 771 (Transit visa) or that the applicant withdrew an application for a Subclass 803 (Aged Parent) visa at the time of making the application for the Subclass 864 (Contributory Aged Parent) visa.

2. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 2 to the Regulations. With limited exceptions, not relevant to this case, he or she must satisfy the Schedule 3002 criterion.

3. In order to satisfy criterion 3002, the application for the visa must have been lodged within 12 months after the relevant day. The ‘relevant day’ is defined in criterion 3002, as set out in the attachment to this decision. Specifically and as detailed in the delegate’s decision record the applicant was granted a substantive visa which ceased on 25 August 2004. He applied for the visa under review on 19 September 2016. Therefore, at the time of application, it was more than 12 months since the applicant held a substantive visa.

4. In a statutory declaration dated 4 December 2019, the applicant stated the following: the Tribunal is to consider the compelling reasons for the applicant not lodging the visa application within12 months after his substantive visa ceased. In 2003, he travelled to Australia with his elderly mother. He returned to Australia in 2004. At that time his mother became ill. He and his wife cared for his mother who suffered from dementia and they were too stressed to care about visa matters. His mother died in May 2007. In the meantime, his son and daughter and their families migrated to Australia and are Australian citizens. He and his wife are retired and all of his family are in Australia. He does not have any close family or assets in Korea. Had he left Australia earlier he would not have been able to return for three years because of the possible exclusion period. This would have meant that he would have to start a new life in Korea and would have been separated from his family. His wife is unwell and suffering from severe asthma, frail knees and an unstable heart. The Korean weather would be detrimental for her health.

5. The applicant mainly reiterated to the Tribunal the information he provided in his statutory declaration of 4 December 2019. In addition he provided the following information: prior to lodging the application under review, he didn’t have any visa options. This was mainly because of his age and other factors and he couldn’t meet the criteria for the grant of a visa. However, he would have lodged an application for a visa had he been able to meet the relevant criteria. When his tourist visa expired his children were not Australian permanent residents or citizens so he couldn’t apply for a parent visa. After his children became Australian permanent residents and then Australian citizens, he heard that if 50 per cent of his children were Australian permanent residents or Australian citizens he would meet the criteria for a parent visa. In Australia he worked as a gardener and a cleaner and in farming and has grown vegetables and sold them. He did this because he had to survive. If he returned to Korea he would have no means to support himself and his wife. He has another son living with his wife and four children in Korea. He has excellent farming skills and would like to use those skills by contributing to his daughter’s farm.

6. The secondary visa applicant told the Tribunal the following: her daughter needs the help of her parents who assist with the care of their grandchildren. They cannot live separately from their daughter.

Case Number 1803385  Page 3 of 5

1. The applicant’s daughter told the Tribunal the following: her parents are old and she would like them to live next door to her. She concentrated on obtaining Australian permanent residency and didn’t focus on her parent’s status mainly because of her marriage breaking down. Without her parents here to help her, it would be extremely difficult for her to live on her own and care for her two daughters.

2. The applicant’s migration agent stated the following: the applicants are very old and have strong bonds with their Australian citizen children and grandchildren. The applicant’s departure from Australia would have serious consequences for their Australian family members. He explained to the applicant that the application for review would not succeed because the applicant does not satisfy the Schedule 3002 criterion. He provided the Tribunal with a copy of a letters signed by the applicant and secondary visa applicant. In the letter they stated that this information has been clearly explained to them and instruct the migration to proceed with the review and subsequent Ministerial intervention request.

3. In written statements from the applicant’s grandchildren, they explain their close relationship with their grandparents and of the difficulties they would face if they departed Australia.

4. While the Tribunal is sympathetic to the current circumstances of the visa applicant and the secondary visa applicant and their Australian family, it is mindful that the applicant and secondary visa applicant, knowingly remained in Australia unlawfully for approximately 12 years and the applicant worked unlawfully in Australia during that time. It appears that the applicant and the secondary visa applicant had little regard for Australia’s immigration laws. The Tribunal is of the view that the applicant and secondary visa applicant were determined to remain in Australia, regardless of their status and until their circumstances became more favourable for a migration outcome.

5. This decision is a synopsis of the evidence before the Tribunal. The Tribunal considered the evidence individually and as a whole. The Tribunal does not consider that the relevant provision allows any discretion to the Tribunal to consider the applicant’s personal circumstances or the reasons why the applicant does not satisfy the Schedule 3002 criterion or to waive the Schedule 3002 criterion.

6. The Tribunal finds that the applicant was not the holder of a substantive visa at the time he made the application in September 2016. His application was not made within 12 months after his substantive visa expired.

7. As the visa application was not made within 12 months of the relevant day, the applicant does not satisfy criterion 3002. Therefore, the applicant does not satisfy cl.864.211(1)(b)(iii) of Schedule 2 to the Regulations.

8. There is no evidence that the applicant meets any of the alternative criteria for the grant of the visa.

9. As the applicant does not satisfy the criteria for the grant of the visa, it follows that the secondary visa applicant does not satisfy cl.864.311 of Schedule 2 to the Regulations.

10. For the reasons above, the applicants do not satisfy the criteria for the grant of the visas. DECISION

11. The Tribunal affirms the decision not to grant the applicants Contributory Aged Parent (Residence) (Class DG) Subclass 864 visas.

    Helena Claringbold
    Member

Case Number 1803385  Page 4 of 5

ATTACHMENT - Extract from Migration Regulations 1994

Clause 864.211 defines that

(1) The applicant is:

(a)   the holder of a substantive visa (other than a Subclass 771 (Transit) visa); or

(b)   a person who:

1. is not the holder of a substantive visa; and

2. immediately before ceasing to hold a substantive visa, was not the holder of a Subclass 771 (Transit) visa; and

3. satisfies criterion 3002.

Schedule 3002 defines that the application is validly made within 12 months after the relevant day within the meaning of Subclause 3001(2)).

Schedule 3001

1. The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

2. For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

   (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

   (b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

   (c)     if the applicant:

   (i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

   (ii)entered Australia unlawfully on or after 1 September 1994; whichever is the later of:

   (iii)the last day when the applicant held a substantive or criminal justice visa; or

   (iv)the day when the applicant last entered Australia unlawfully; or

   (d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

   (i)the day when that last substantive visa ceased to be in effect; and

   (ii)the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

Schedule 3002

Schedule 3002 defines that the application is validly made within 12 months after the relevant day within the meaning of Subclause 3001(2)).

Case Number 1803385  Page 5 of 5