Kim (Migration)

[2022] AATA 3491

Kim (Migration) [2022] AATA 3491 (30 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Seongryong Kim
Master Jaekyung Kim
Ms Jimin Park

REPRESENTATIVE:  Mr Kris Ahn

CASE NUMBER:  2118565

HOME AFFAIRS REFERENCE(S):          BCC2021/1818958

MEMBER:Meredith Jackson

DATE:30 June 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.

Statement made on 30 June 2022 at 6:11pm

CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – ‘aged parent’ – old enough to be granted an age pension under the Social Security Act 1991 – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 804.212, 804.321

statement of decision and reasons

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 applicants Aged Parent (Residence) (Class BP) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

BACKGROUND

1. The applicants are Mr Seongryong Kim, Master Jaekyung Kim and Ms Jimin Park. They applied for the visa on 17 September 2021 with Mr Seongyrong Kim as the primary applicant, on the basis that Mr Kim is the parent of a settled Australian citizen, in this matter his child Ms Ashton Jaeyoon Kim, who was born in Australia on 17 January 2011.

2. 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 (Cth) (the Regulations). The criteria for a Subclass 804 visa are set out in Part 804 of Schedule 2 to the Regulations. Relevantly to the present matter, the primary criteria to be met include cl 804.212, which is a time of application criterion.

3. Secondary applicants for the visa must only meet the secondary criteria in cl 804.321, which requires that the applicant is a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 804 visa.

4. The delegate refused to grant the visas on 24 November 2021 on the basis that cl 804.212 was not met, because at the time of application on 17 September 2021, the primary review applicant Mr Seongryong Kim, who was born on 11 October 1982, was aged 38 years, 11 months and 6 days. Accordingly, he did not meet the definition of an “aged parent”.

5. The applicants sought review of the decisions. The applicants were represented in relation to the review.

6. On 13 June 2022, the applicants were invited to attend a hearing scheduled for 28 June 2022. In the invitation, the Tribunal stated that the material before the Tribunal had been considered but a favourable decision on that information alone could not be made.

7. On 14 June 2022, the applicants through their representative Kris Ahn, requested a postponement of the hearing on the basis that the representative could not attend the hearing due to her own pre-planned travel. The request was accommodated, the hearing was vacated and a new hearing was set down for 6 July 2022. The hearing acceptance form indicated that Master Jaekyung Kim would not attend the hearing.

8. As the hearing was intended to be conducted by video link, a hearing test was scheduled for 2.30pm on 30 June 2022. The applicant’s representative joined the test. The Tribunal officer conducting the hearing test recorded that the representative stated that the parties would not be participating in the hearing and that they requested to have their decision made in writing.

10.The Tribunal notes a request for a decision to be made without a hearing has been made. The Tribunal has proceeded to make a decision on the basis of the information before the Tribunal.

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

ISSUES AND LAW

12.The issue in the present case is whether the applicants meet the criteria for the grant of Aged Parent (Residence) (Class BP) visas.

Is the applicant the aged parent of settled child?

1. Except for certain substituted Subclass 676 or 600 visa holders, cl 804.212(1) and cl 804.221 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. It is not claimed that the applicant held a substituted Subclass 676 or 600 visa at the relevant time.

14.The term ‘aged parent’ is defined in reg 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 reg 1.03 and requires that the child be lawfully resident in Australia for a reasonable period. In the present matter, the child is an Australian citizen who was born in Australia on 20 January 2011 and whose citizenship was approved on 5 February 2021.

CONSIDERATION OF CLAIMS AND EVIDENCE

Primary applicant Mr Seongryong Kim

15.The primary applicant, Mr Seongryong Kim, born 11 October 1982, made the visa application on the basis that he is the parent of Ms Ashton Jaeyoon Kim (‘the child’). The evidence before the Tribunal is that the sponsor, Ashton Jaeyoon Kim, is the child of the applicant. Ashton Jaeyoon Kim was born in Australia on 17 January 2011.

16.The Tribunal has considered the evidence before it as to whether the applicant meets the definition of ‘aged parent’. As indicated earlier, to qualify as a person old enough to be granted an pension under the Social Security Act 1991, where a person who is born on or after 1 July 1957, they must be aged at least 67 years to qualify for the aged pension. As the applicant was aged 38 years at the time of application, he does not meet the definition of ‘aged parent’.

17.The applicant was not the holder of a substituted Subclass 600 visa. The applicant therefore does not meet cl.804.212(1)(a)(i).

18.The Tribunal 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).

Second-named applicant Master Jaekyung Kim

19.The second-named applicant Master Jaekyung Kim, who was born 16 August 2013, applied for a subclass 804 Contributory Aged Parent visa on the basis of being a member of the family unit of the primary applicant Mr Seongryong Kim.

20.At the time of application on 17 September 2021, the applicant was onshore and held a Subclass UC 457 visa, which was not a substituted Subclass 600 visa.

21.In order for Master Kim to meet the secondary criteria for the visa under review, the primary applicant Seongryong Kim must be the holder of a Subclass 804 visa. As the primary applicant has been found on review not to meet the criteria for a Subclass 804 visa, Master Kim does not meet the secondary criteria in cl. 804.321.

Third-named applicant Ms Jimin Park

22.The third-named applicant Jimin Park, born 15 September 1982, applied for a subclass 804 Contributory Aged Parent visa on the basis of being a member of the family unit of the primary applicant, Mr Seongryong Kim.

23.Ms Park, who was born on 15 September 1982, does not meet the definition of an aged parent, as she is aged 39 years, where she must be at least 67 years of age to be granted an age pension under the Social Security Act 1991, as described earlier in these reasons.

24.The primary applicant Mr Seongryong Kim has been found not to meet the criteria for the grant of an Aged Parent visa. As Seongryong Kim is not the holder of a Subclass 804 visa, the applicant is not a member of the family unit of a person who having satisfied the primary criteria, is the holder of a Subclass 804 visa.

25.As the primary applicant does not meet the criteria for a Subclass 804 visa, Jimin Park does not meet the secondary criteria in cl. 804.321.

Conclusion

26.For the reasons above, the Tribunal finds that the applicants do not meet the criteria for a Subclass 804 visa.

decision

27.The Tribunal affirms the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.

Meredith Jackson
Member

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

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.