Kim (Migration)

[2018] AATA 1029

Kim (Migration) [2018] AATA 1029 (19 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yongsoo Kim
Mrs Yeong Ja Kang

CASE NUMBER:  1716805

DIBP REFERENCE(S):  CLF2008/27284

MEMBER:Ann Brandon-Baker

DATE:19 March 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 19 March 2018 at 8:33am

CATCHWORDS

Migration – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – Sponsor is the son of the applicant – Co-assurer not an Australian permanent resident –  Assurance of support accepted by Social Services has not been provided to the Tribunal

LEGISLATION
Migration Act 1958 s 65
Migration Regulations 1994 Schedule 1 Item 1124A Schedule 2 cl 804.224

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 Immigration and Border Protection to refuse to grant the applicants Aged Parent (Residence) (Class BP) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 14 February 2008. 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.804.224.

3. The delegate refused to grant the visas on 12 July 2017 on the basis that cl.804.224 was not met because the applicants had not provided the required assurance of support.

4. The Tribunal wrote to the applicants on 2 March 2018 informing them that they were required to provide the Tribunal with the required assurance of support accepted by Centrelink. The applicants were informed that if it did not receive this information by 16 March 2018 it may proceed to make a decision on the information before it.

5. On 12 March 2018 the sponsor wrote to the Tribunal on behalf of the applicants stating that previous assurances of support had been rejected by Centrelink because a co-assurer, his sister, was not eligible to be an assurer because she was not a permanent resident. The sponsor claimed that his sister was now eligible and asked that the application be considered on that basis. He has provided no evidence of that and, in any case, has not submitted an approved assurance of support.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the applicant is the parent of Dong Won Kim, an Australian citizen.  The evidence before the Tribunal is that the sponsor, Mr Kim, is the child of the applicants.

8. A visa cannot be granted unless the relevant criteria specified in the Migration Act and Regulations are satisfied. In the present case clause 804.224 has not been met by the applicant as at the date of this decision.

9. Clause 804.224 states that the Minister is satisfied that an assurance of support in relation to the applicant has been accepted by the Secretary of the Department of Family and Community Services.

10. The parties have not provided the Tribunal with an assurance of support and hence the applicant does not meet clause 804.224.

    CONCLUSION

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

    DECISION

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

    A B Baker
    Senior Member