Kaur (Migration)

[2021] AATA 116

Kaur (Migration) [2021] AATA 116 (19 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Charanjit Kaur

CASE NUMBER:  2005781

DIBP REFERENCE(S):  CLF2020/9403

MEMBER:M. Edgoose

DATE:19 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 19 January 2021 at 10:34am

CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Parent) – age requirement – not old enough to be granted aged pension when application made – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 804.211

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 20 February 2020. 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.

3. The delegate refused to grant the visa on 11 March 2020 on the basis that cl.804.211 was not met because the applicant was under 66 years of age at time of application and did not meet the definition of aged parent, as set out in Regulation 1.03.

4. The applicant appeared before the Tribunal on 19 January 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.   

7. At time of application the Tribunal finds the applicant did not meet the definition of ‘aged parent’ according to r.1.03 and was not old enough to be granted the aged pension under the Social Security Act 1991.

8. The applicant stated on her visa application that her date of birth is 20 May 1955. The visa application was made on 20 February 2020. According to the delegate’s decision the applicant submitted copies of the biodata page of her valid passport issued by the Republic of India. Therefore, at time of the visa application the applicant was 64 years and 9 months of age. The applicant confirmed her date of birth at the hearing.

9. The Tribunal finds that as the applicant was under 66 years of age at time of application the applicant did not meet the definition of aged parent, as set out under r.1.03 of the Regulations and does not satisfy cl.804.211.

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

    DECISION

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

    M. Edgoose
    Member