Jeong (Migration)

This matter concerned an application for a Contributory Aged Parent (Residence) (Class DG) visa, subclass 864, by the applicant, who was not the holder of a substantive visa at the time of application. The secondary applicant was the applicant's wife. The sponsor was the applicant's daughter, an Australian citizen. The core dispute revolved around whether the applicant met the Schedule 3002 criterion of Schedule 2 to the Migration Regulations.

The legal issue before the Tribunal was whether the applicant satisfied the Schedule 3002 criterion, which requires an applicant who does not hold a substantive visa at the time of application to have lodged their visa application within 12 months of the "relevant day." The applicant's last substantive visa expired on 25 August 2004, and the application for the subclass 864 visa was lodged on 19 September 2016, significantly exceeding the 12-month timeframe. The Tribunal was required to determine if there were compelling reasons for this delay that would allow for an exception to the strict time limit.

The Tribunal reasoned that the Schedule 3002 criterion imposed a mandatory time limit, and with limited exceptions not applicable in this case, the applicant was required to satisfy this criterion. The applicant's stated reasons for the delay, including caring for his ill mother, stress related to visa matters, the migration of his children to Australia, his and his wife's retirement, and his wife's health concerns, were considered. However, the Tribunal found that these reasons did not negate the clear requirement of the regulation that the application be lodged within 12 months of the relevant day. The Tribunal concluded that the applicant had not met this criterion.

Consequently, the Tribunal affirmed the decision not to grant the applicant and his wife the Contributory Aged Parent (Residence) (Class DG) visas, subclass 864.