Jung (Migration)

[2021] AATA 236

Jung (Migration) [2021] AATA 236 (4 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Jung Suk Jung

CASE NUMBER:  1916847

DIBP REFERENCE(S):  CLF2019/24920

MEMBER:Brendan Darcy

DATE:4 January 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

Statement made on 4 January 2021 at 10:24am

CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Parent) – age requirement – age to be granted aged pension – gradual increases in pension age – applicant aged 65 but not applicable age of 66 – COVID-19 travel restrictions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 804.212(1)(a)(ii)

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 Home Affairs 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 applied for the visa on 6 June 2019. 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.804.212 and regulation 1.03.

3. The delegate refused to grant the visa on 17 June 2019 on the basis that cl.804.212(1)(a)(i) was not met because the applicant was not an aged parent according to regulation 1.03.

4. Via an internet-based audio-visual facility (MS Teams), the applicant appeared before the Tribunal on 9 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Seulkyoung Kim, claiming to be the applicant’s daughter.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The applicant was also represented in relation to the review by her registered migration agent.

6. At the end of the hearing, the Tribunal undertook to delay making its decision until after December 2020 based on the request of the applicant to remain in Australia with her family before departing or lodging a timelier and more appropriate visa application.

7. On 18 November 2020, the Tribunal received a submission via the applicant’s representative that that the applicant was to leave Australia within 35 days for her country of nationality and wishes to return to Australia for Chrisman and the New Year. It is feared the applicant will face pandemic-related restrictions in order to return to Australia.

8. The applicant should be aware, as discussed in the hearing, the Tribunal cannot delay its decision-making duties indefinitely. Furthermore, the onus and risk of facing current restrictions to re-enter Australia among temporary or bridging visa holders is to be borne by the applicant and not the Tribunal.

9. The Tribunal has accordingly proceeded with its decision-making duties and for the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this matter is whether the visa applicant can be granted if the following criteria specified in the Migration Regulations are satisfied at the time of application: clause 804.212.

11. This visa applicant, Jung Suk Jung, is a female citizen of the Republic of Korea (Korea). while in Australia holding a Subclass 600 family visitor visa.  He was born in Korea on 17 May 1954.

12. She first arrived in Australia in July 2011 and then departed on September 2011 on a visitor visa. The visa applicant has subsequently returned to and departed Australia as many as ten times on visitor visas.

13. The applicant relevantly last returned to Australia on 14 March 2019 while holding a Class FA Subclass 600 visitor visa.

14. On 6 June 2019, she validly applied for this aged parent visa and was subsequently granted an associate bridging visa. On this visa application, the applicant claimed to be divorced and not married at the time of application.

15. The visa is sponsored by the applicant’s daughter, Kim Seulkyoung. Born in 22 April 1981, the sponsor became an Australian permanent resident on 20 July 2007.

16. On 17 June 2019, a delegate on behalf of the Minister refused to grant the applicant an aged parent visa on the basis that did not satisfy regulation r.1.03 as the applicant was a parent who is not old enough to be grant an aged pension at the time of application.

17. On 26 June 2019, the applicant validly applied to have the Tribunal to have the refusal decision reviewed. The delegate’s decision record was attached to the review application.

    Is the applicant the aged parent of settled child?

18. Except for certain substituted Subclass 676 or 600 visa holders, cl.804.212(1) and cl.802.221 require that at the time of application and decision the applicant is an ‘aged parent’ of the child who must be a settled Australian citizen, permanent resident or eligible New Zealand citizen. In this case the applicant did not hold a substituted Subclass 676 or 600 visa at the relevant time.

19. The term ‘aged parent’ is defined in r.1.03 of the Regulations as a parent who is old enough to be granted an age pension under the Social Security Act 1991. The term ‘settled’ is also defined in r.1.03 and requires that the child be lawfully resident in Australia for a reasonable period.

20. The visa application was made on the basis that the applicant is the parent of Kim Seulkyoung (‘the child’). The evidence before the Tribunal is that the sponsor is the child.  There is no contention in this matter that the child is not a ‘settled’.

21. The key is whether the applicant is an aged parent according to r.1.03 of the Regulations.

22. As explained in the scheduled hearing, the definition of an aged parent requires the applicant to be old enough to be granted an aged pension under the Social Security Act 1991.

23. The version of the Social Security Act 1991 (listed in part below) that was in place at the time of lodgement of the parent visa application states that the pension age of a woman born during the period 1 January 1954 to 30 June 1955 is 66 years. (5D) A woman born during the period specified in column 2 of an item in the following table:

TABLE - Pension age for women
24.      Column 1 25.      Item	26.      Column 2 27.      Period during which woman was born	28.      Column 3 29.      Pension age
30.      1	31.      1 January 1949 to 30 June 1952	32.      65 years
33.      2	34.      1 July 1952 to 31 December 1953	35.      65 years and 6 months
36.      3	37.      1 January 1954 to 30 June 1955	38.      66 years
39.      4	40.      1 July 1955 to 31 December 1956	41.      66 years and 6 months
42.      5	43.      On or after 1 January 1957	44.      67 years

1. The applicant stated on the application Form 47PA that her date of birth is 17 May 1954. In support of this claim, she has provided copies of the biodata page of her valid passport issued by the Ministry of Foreign Affairs and Trade in the Republic of Korea, and her marriage relations, family relations and police certificates. These documents confirm that the date of birth for Ms Jung is 17 May 1954 reaches pension age when she turns the age specified in column 3 of that item (as outlined in the decision record).

2. During the hearing, it was discussed that as the applicant was born on 17 May 1954 and at the time of application, she had just reached the age of 65 and that she required to be at least 66 years of age. The applicant did not dispute this and claimed that she was under the impression that pensionable age in Australia was 65 at the time of application for the purposes of being granted this aged parent visa.  

3. The applicant’s representative claimed the applicant satisfied the pensionable age requirement at the time of decision. The Tribunal explained that the applicant had to satisfy clause 804.212 in order to satisfy 804.222:  A sponsorship of the kind mentioned in clause 804.212 is in force, whether or not the sponsor was the sponsor at the time of application requirements.  

4. Given there was no dispute about the age of the applicant at the time of application, the Tribunal explained it had to affirm the decision not to grant the visa. It further discussed it was open to the applicant to withdraw the review application and make a timelier and more appropriate visa application.

5. The Tribunal provided up to 20 November 2020 to indicate to it the applicant’s way forward with this matter, noting that the Tribunal would have to affirm the decision not to grant the visa if no withdrawal application was received by the end of 2020. This, it was discussed, allowed the applicant to remain in Australia during the Christmas holidays with her grandchildren. During the hearing, it is noted the applicant requested the Tribunal to delay its decision by another six or three months. This request was refused.  It was emphasis to the applicant and the representative that the Tribunal would not unduly delay its decision-making duties on an indefinite or even long term basis. 

6. In the post hearing submission, the applicant’s representative outlined the applicant was to depart Australia and for the Tribunal to delay its decision until pandemic-related travel restrictions were lifted.  As mentioned above, the onus and risk of facing current restrictions to re-enter Australia among temporary or bridging visa holders is to be borne by the applicant and not the Tribunal.

7. The Tribunal finds that the applicant did not meet the definition of ‘aged parent’ as she had not reached the qualifying age for the Aged Pension under the Social Security Act 1991 at the time of application as required by regulation 1.03.

8. The Tribunal accordingly finds that the applicant is not the aged parent of an eligible child at the time of application and therefore does not satisfy cl.804.212(1).

   Conclusion

9. For the reasons above, the Tribunal finds that the applicant does not meet the criteria for a Subclass 804 visa.

   DECISION

10. The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

    Brendan Darcy
    Member

    ATTACHMENT – Legislation Extracts from Migration Act 1958 and Migration Regulations 1994

    804.212
    (1) The applicant is:
    (a) in the case of an applicant who is not the holder of a substituted Subclass 600 visa:
    (i) the aged parent of a person (the child) who is a settled Australian citizen, settled
    Australian permanent resident or settled eligible New Zealand citizen; and
    (ii) sponsored in accordance with subclause (2) or (3); or
    (b) in the case of an applicant who is the holder of a substituted Subclass 600 visa:
    (i) the parent of a person (the child) who is a settled Australian citizen, settled Australian
    permanent resident or settled eligible New Zealand citizen; and
    (ii) sponsored in accordance with subclause (2) or (3).
    (2) If the child has turned 18, the applicant is sponsored by:
    (a) the child; or
    (b) the child’s cohabiting spouse or de facto partner, if the spouse or de facto partner:
    (i) has turned 18; and
    (ii) is a settled Australian citizen, settled Australian permanent resident, or settled eligible
    New Zealand citizen.
    (3) If the child has not turned 18, the applicant is sponsored by:
    (a) the child’s cohabiting spouse, if that spouse:
    (i) has turned 18; and
    (ii) is a settled Australian citizen, settled Australian permanent resident or settled eligible New
    Zealand citizen; or
    (b) a person who:
    (i) is a relative or guardian of the child; and
    (ii) has turned 18; and
    (iii) is a settled Australian citizen, settled Australian permanent resident, or settled eligible
    New Zealand citizen; or
    (c) if the child has a cohabiting spouse but the spouse has not turned 18 — a person who:
    (i) is a relative or guardian of the child’s spouse; and
    (ii) has turned 18; and
    (iii) is a settled Australian citizen, settled Australian permanent resident, or settled eligible
    New Zealand citizen; or

    (d) a community organisation.

    5CA Child of a person

    (1)Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:

    (a)someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);

    (b)someone who is an adopted child of the person within the meaning of this Act.

    (2)The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.

    (3)Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.

    1.03      Definitions

    …

    step-child

    in relation to a parent, means:

    (a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or

    (b)a person who is not the child of the parent but:

    (i)who is the child of the parent’s former spouse or former de facto partner; and

    (ii)who has not turned 18; and

    (iii)in relation to whom the parent has:

    (A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

    (B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

    1.14A     Parent and child

    (1)A reference in these Regulations to a parent includes a step-parent.

    (2)For subsection 5CA(2) of the Act, if a child has been adopted under formal adoption arrangements mentioned in paragraph 1.04(1)(a) or (b) by a person or persons (the adoptive parent or parents):

    (a)the child is taken to be the child of the adoptive parent or parents; and

    (b)the child is taken not to be the child of any other person (including a person who had been the child’s parent or adoptive parent before the adoption).

    Note 1A child cannot have more than 2 parents (other than step-parents) unless the child has been adopted under arrangements mentioned in paragraph 1.04(1)(c).

    Note 2Parent is defined in subsection 5(1) of the Act, and child is defined in section 5CA of the Act.