Stretch (Migration)

[2017] AATA 2298

Stretch (Migration) [2017] AATA 2298 (13 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Catherine Stretch

CASE NUMBER:  1600755

DIBP REFERENCE(S):  CLF2013/46270

MEMBER:Kira Raif

DATE:13 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 13 November 2017 at 7:25am

CATCHWORDS

Migration – Aged Parent (Residence) (Class BP) visa – Subclass 804 visa – Applicant’s daughter withdrew her sponsorship 

LEGISLATION

Migration Act 1958, ss 65

Migration Regulations 1994, rr 1.03, 1.14, Schedule 1, Item 1124A, Schedule 2, cls 804.212, 804.222

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 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 is a national of the UK born in October 1939. She applied to the Department of Immigration for the visa on 26 February 2013. The delegate refused to grant the visa on 5 January 2016 on the basis that cl.804.222 was not met because the applicant was no longer sponsored by her sponsor. The applicant seeks review of the delegate’s decision.

3. On 19 September 2017 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 13 November 2017. On 10 November 2017 the applicant advised the Tribunal, through her representative, that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. No explanation has been offered by the applicant’s representative for the late submission of this request. This matter has been determined on the evidence available to the Tribunal.

   Relevant law

4. 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.804.222.

5. Clause 804.212 requires that at the time of application, the applicant is sponsored by a settled Australian citizen, permanent resident, or eligible New Zealand citizen. The sponsor must be the child or the child’s cohabiting spouse or de facto partner or, if the child has not turned 18, the child’s cohabiting spouse, a relative or guardian of the child or the child’s spouse (if the spouse has not turned 18) who has turned 18, or a community organisation.  At the time of decision a sponsorship must be in force, although the sponsor need not be the same sponsor as at the time of application, provided he or she meets the requirements above: cl.804.222.

   Are the sponsorship requirements met?

6. When making the application, the applicant was sponsored by her daughter, Ms Hazel May Stackhouse. The applicant provided to the Tribunal a copy of the primary decision record which indicates that in February 2015 Ms Stackhouse wrote to the Department advising that she was withdrawing her sponsorship of the applicant. The applicant provided an explanation to the delegate about the circumstances of the sponsorship but it is not the role of the Tribunal to determine the reasons why the sponsorship was withdrawn.

7. At the time of this decision, there is no evidence that the sponsorship of the kind mentioned in cl. 804.213 is in force. There is no evidence before the Tribunal of any other sponsorship. The Tribunal is not satisfied on the evidence before it that at the time of this decision, the applicant continues to be sponsored in accordance with the requirements of cl. 804.212. The Tribunal is not satisfied that the applicant meets cl. 804.222.

   Conclusion

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

   DECISION

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

   Kira Raif
   Senior Member