Kumar (Migration)

[2019] AATA 291

Kumar (Migration) [2019] AATA 291 (14 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Madhubala Kumar

CASE NUMBER:  1621550

DIBP REFERENCE(S):  CLF2016/21565

MEMBER:Kira Raif

DATE:14 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Residence) (Class DG) visa.

Statement made on 14 January 2019 at 3:53pm

CATCHWORDS

MIGRATION – Contributory Aged Parent (Residence) (Class DG) – Subclass 864 (Contributory Aged Parent) – aged parent of another person – applicant under pension age – unable to waiver statutory requirements – decision affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.03 Schedule 2 cl 864.212

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 on 5 December 2016 to refuse to grant the visa applicant a Contributory Aged Parent (Residence) (Class DG) Subclass 864 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Fiji born in December 1953. She applied for the visa on 7 April 2016. The delegate refused to grant the visa on the basis that cl. 864.212 was not met because the delegate was not satisfied the applicant was an aged parent of another person. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 14 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter and son in law. The issue in this review is whether the applicant is an aged parent as required by cl.864.212. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. Clause 864.212 relevantly requires the applicant to be an aged parent of a settled Australian citizen, permanent resident or a settled eligible New Zealand citizen. “Aged parent” is defined in r 1.03 as “a parent who is old enough to be granted an age pension under the Social Security Act 1991.”  

   Is the applicant an aged parent?

5. There is no evidence that at the time the application was made, the applicant was the holder of a substituted Subclass 600 visa. The Tribunal is not satisfied the applicant meets cl. 864.212(ab) and (d). There is no evidence that the applicant was a holder of a Subclass 884 Contributory Aged Parent (Temporary) visa and the Tribunal is not satisfied the applicant meets cl. 864.212(b) and (d). The applicant relies on cl. 864.212(a), which requires her to be an aged parent of another person.

6. Aged parent must be assessed by reference to the Social Security Act 1991. Relevantly, s 23 of that Act defines pension age for women as 65 years.

7. The visa applicant was born in December 1953 and made her application for the visa in April 2016. She was 63 years of age when the application was made. The Tribunal is not satisfied that the visa applicant was old enough to be granted an age pension under the Social Security Act 1991 at the time she made the visa application as she was under the age of 65. She is not an aged parent. The Tribunal is not satisfied the visa applicant meets cl. 864.212(a) and cl. 864.212.

8. In her written submission to the Tribunal of 7 January 2019 (which appears to have been prepared by a legal representative) the applicant outlined the background to her application and immigration history. The applicant states that her daughter made contact with Immigration and was told that she could proceed with the application even though she did not meet the age requirements. The applicant refers to other Tribunal decisions where the visa applicants did not meet a statutory criterion at the time of the application but were able to meet the criterion at the time of decision. The Tribunal considers that comparison unhelpful. The clauses to which the applicant refers relate to time of decision requirements in cl. 864.223. In the present case, however, the requirement at issue is a requirement that applies at the time of the application. It cannot be satisfied only by the applicant meeting that requirement at the time of the Tribunal decision.

9. In oral evidence the applicant told the Tribunal that she was unaware of the age requirement and they were not informed about it by Immigration when they made inquiries. That may be the case but the Tribunal cannot waive the statutory requirement on the basis that the applicant was unaware of it.

10. The applicant referred to the close relationship she has with her daughter and states that she does not want to be separated and cannot return to Fiji. The applicant provided declarations from other parties addressing the issues of relationship and dependence. In oral evidence to the Tribunal, the applicant stated that she has nothing and no one in Fiji and she relies on her family in Australia. The applicant spoke about her relationship with her family in Australia. She referred to her poor health and the grandchildren’s reliance on her. The applicant refers to the financial dependence she has on her daughter. The Tribunal does not consider it necessary to address the issue of dependence because another requirement concerning the applicant’s age is not met and the Tribunal has no discretion to recommend the visa grant on compassionate grounds. Having found that the applicant does not meet one of the requirements for the visa grant, the Tribunal must affirm the decision under review.

    CONCLUSION

11. The Tribunal finds that the applicant does not meet cl. 864.212. Given that finding, the Tribunal affirms the decisions under review.

    DECISION

12. The Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Residence) (Class DG) visa.

    Kira Raif
    Senior Member