S Muniyandy (Migration)

[2021] AATA 2996

S Muniyandy (Migration) [2021] AATA 2996 (28 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms M Vasanti S Muniyandy

CASE NUMBER:  1834925

DIBP REFERENCE(S):  CLF2017/52531

MEMBER:Moira Brophy

DATE:28 June 2021

PLACE OF DECISION:  Sydney

DECISION:The decision under review is affirmed.

Statement made on 28 June 2021 at 5:39pm

CATCHWORDS
MIGRATION – Contributory Aged Parent (Temporary) (Class UU) visa – Subclass 884 (Contributory Aged Parent (Temporary)) – age requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 884.212

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 7 November 2018 to refuse to grant the visa applicant a Contributory Aged Parent (Temporary) (Class UU) Subclass 884 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 13 July 2017. The delegate refused to grant the visa on the basis that cl.884.212 was not met. The delegate found the applicant was not able to meet this clause because at the time of application she was not old enough to be granted an aged pension under the Social Security Act 1991.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the  

4. The applicant appeared before the Tribunal on 28 June 2021 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Clause 884.212 requires the applicant to be a parent who is old enough to be granted an age pension under the Social Security Act 1997.

7. The issue in the present case is whether the applicant is a parent who is old enough to be granted an age pension under the Social Security Act I997.

8. The visa applicant outlined her immigration history in Australia. She first came to Australia on an Electronic Travel visa (subclass 976) visa granted on 8 November 2008.

9. She has held a number of visas since then always complying with visa conditions. She said she had been outside Australia in the period from 2013 to 2016 but apart from that period she had been in Australia.

10. She told the Tribunal her three daughters were all Australian citizens. She had no family or property in Malaysia. She wanted to be where her children were.

11. The applicant said in order to remain in Australia she had sought the assistance of a migration agent and it was he who had made the application on her behalf. The applicant said she had paid for the application for the visa initially and then the fees to seek review at the AAT. In addition to this she had to pay the migration agent for his services. She felt it was most unfair when the agent now admitted he had made an error as she was not able to meet the requirements for the visa.

12. Asked why she believed the Contributory aged Parent visa application was refused the applicant indicated that she did not meet the age requirements. Her date of birth was 25 February 1964.

13. The facts are that on 13 July 2017 Ms Maniyandy, born 25 February 1964, made an application for a Contributory Aged Parent (Temporary) (class UU) (subclass 884) visa as a parent of an Australian citizen child.

14. At the time of application Ms Maniyandy was aged 53 years, four months and 18 days.

15. Under the Social Security Act I997 the eligible age for a pension at the time of application was 65 years and 6 months. The applicant was born on 25 February 1964 and on this basis is not a parent who is old enough to be granted an age pension under the Social Security Act I997.

16. As cl.884.212 is not met by the applicant, the criteria for the grant of a Contributory Aged Parent (Temporary) (class UU) (subclass 884) visa is not met by the applicant.

17. For the reasons above, the Tribunal finds Ms Maniyandy does not satisfy the criteria for the grant of the visa.

18. As discussed with the applicant at the hearing, the Tribunal does not have any discretion in regard to mandatory criteria prescribed for this class of visa.

    DECISION

19. The decision under review is affirmed.

    Moira Brophy
    Member