To (Migration)

[2022] AATA 2573

To (Migration) [2022] AATA 2573 (20 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Demi To

REPRESENTATIVE:  Ms Shalini Vellapandian (MARN: 0743002)

CASE NUMBER:  2014618

HOME AFFAIRS REFERENCE(S):          CLF2018/357961

MEMBER:Russell Matheson

DATE:20 April 2022

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 20 April 2022 at 2:49pm

CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – ‘aged parent’ of a settled Australian citizen – age requirement – father passed away – mother became primary applicant – compassionate circumstances – serious, ongoing and irreversible harm and continuing hardship – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 804.211, 804.221
Social Security Act 1991 (Cth), s 23

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 Home Affairs to refuse to grant the applicant an Aged Parent (Residence) (Class BP) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 October 2018. 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 this matter, the primary criteria to be met include cl 804.211 and cl 804.221.

3. The Delegate refused to grant the visa on 17 September 2020 on the basis that cl 804.211 and cl 804.221 was not met because the applicant was under 66 years of age at the time of application and time of decision.

4. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. As discussed with the applicants at hearing, the Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants, including as will be discussed further in these Reasons, the inevitable affirm decision required to be made by the Tribunal and the futility of further adjourning the matter given the circumstances. 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 video.

5. The applicant appeared before the Tribunal on 20 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter Lily To.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was represented in relation to the review.

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

   Background

8. The applicant and her husband, Mr Van Phung TO lodged an application for an Aged Parent Visa on 30 October 2018. At the time of application Mr TO born on 6 June 1949 was aged 69 Years, 4 months and 24 days. He met the age requirement at the time.

9. Mr To passed away on 27 November 2018, therefore the applicant (Ms To) became the primary applicant.

   Consideration of claims and evidence

10. The visa application was made on the basis that the applicant is the parent of an Australian citizen, Lily To (‘the child’).

    Is the applicant the aged parent of a settled child?

11. 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. In this case it is not in dispute that the applicant did not hold a substituted Subclass 676 or 600 visa at the relevant time.

12. The term ‘aged parent’ is defined in reg1.03 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. The applicant’s daughter Lily To obtained Australian citizenship by grant in April 2017 and is therefore a settled Australian citizen.

13. Regulation 1.03 relevantly defines ‘aged parent’ as follows:

    aged parent means a parent who is old enough to be granted an age pension under the Social Security Act 1991.

14. Pursuant to s.23(5A) of the Social Security Act 1991, a woman born in the period 1 January 1954 to 30 June 1955 is old enough to be granted age pension when she turns 66 years.

15. The applicant was born in Vietnam on 12 October 1954. As at the date of the visa application on 28 October 2018, the applicant was aged 64 years, 0 months and 18 days. She therefore did not meet the definition of aged parent at the time of application. It follows that the applicant was not the aged parent of an eligible child at the time of application such that cl 804.212 is not met as required. The Tribunal has no discretion to disregard this criterion.

16. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 804 visa. As this is the only relevant subclass in this case, the decision under review must be affirmed.

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

    Is Ministerial Intervention warranted in this case?

18. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to an applicant, whether or not the Tribunal had the power to make that other decision. In deciding whether to refer the matter to the Minister for consideration under s 351, the Tribunal has had regard to the President’s Direction on Conducting Migration and Refugee Reviews dated 1 August 2018, especially at paragraphs 16.1–16.7 concerning referrals for Ministerial intervention and the Minister’s Guidelines on ministerial powers (s 351, s 417, and s 501J) available in the Procedures Advice Manual (PAM3) (the Minister’s Guidelines).

19. The applicant and sponsor have requested that the Tribunal refer the case to the Department for consideration by the Minister. As noted in submissions on behalf of the applicant, the Tribunal notes the following matters (which are supported by corroborating documentation):

    (a)The applicants husband passed away approximately one month after the visa application was made resulting in the applicant becoming the primary applicant. At the time of application her husband was aged 69 Years, 4 months, and 24 days. He met the age requirement at the time, and she would have only had to have met the criteria of being a member of the family unit of a person having satisfied the primary criteria being the holder of an 804 visa to be granted her visa.

    (b)The applicant now satisfies the age requirement and is receiving a pension and widow allowance from Finland since 2018 and will not be a financial burden on Australia.

    (c)The applicant’s family, grandchildren and sister-in-law reside in Australia other than her youngest son who resides in Finland.

    (d)The applicant has been living with her daughter Lily (sponsor) and her family since 2008. The applicant and her daughter have purchased a block of land in the Hunter region close to her brother Robins home that was funded fully by the applicant’s savings. They are going to build a home so the applicant can have her own room and they can live a better quality of life together as a family.

    (e)The applicant has helped care for the sponsors two children aged three and eight and the sponsor would have suffered more severe postpartum depression and would not have been able to recover from the loss of her father if  she wasn’t  supported by her mother. Her mother helps with the cooking, cleaning and takes her children to school. The applicant and sponsor lent on each other when grieving over the death of Mr To and without each other’s support would have suffered a metal breakdown and they continue to care for each other mentally and physically. This would not occur if the applicant had to return to Finland. The applicant’s family were not prepared to send her home to Finland or live on her after her husband’s death because she was still grieving due to his sudden death and the majority of her family live in Australia and they can provide comfort, care and support to her in a family environment.  Additionally, Finland, is severely impacted by the COVID-19 pandemic, a virus to which she would be particularly vulnerable given her age and having to live on her own with no family support.

    (f)The sponsor suffers from severe acute stress disorder from significant life events (loss of her father and childbirth) as well as work pressure. Her symptoms have gradually worsened and are now associated with chronic anxiety leading to panic attacks resulting in being admitted to Royal Prince Alfred Hospital in March 2022 and being diagnosed with severe anxiety disorder and she has commenced medication and needs the support of her mother.

    (g)The applicant also provides care, comfort, and support to the sponsors older brother Robin’s children aged 10 and 12. The brother and his wife run their own fish and chip shop working six days a week and need the support of the applicant to help with the upbringing and care of their children.

    (h)The applicant continues to be traumatised by wartime horrors from when she was single and living in Cambodia. She luckily survived the Cambodian genocide and was returned to Vietnam by the Red Khmer in exchange for salt and when this was stopped Vietnamese citizens were killed. Also, the applicant does not feel safe returning to Finland due to the high level of intimidation Russia is posing on Finland (news article provided).

    (i)The sponsor is aware the applicant had to meet the aged parent age requirements to be eligible for the grant of her visa and the applicant became the primary applicant post her father’s death which was a circumstance beyond her control. She is aware that her age at the time of application does not allow her legally to be granted an 804 visa. The sponsor believes that compelling and compassionate circumstances exist due to her mother’s situation and the sudden death of her husband  and to send her back to Finland to live on her own would have a significant impact upon her health and wellbeing and mental health and also have a detrimental impact upon the close family ties and relationships she relies on for care, comfort and support in Australia.

20. Having considered the applicants circumstances and the ministerial guidelines, the Tribunal considers that there are compassionate circumstances regarding the applicants age and family circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the applicant and her family with the majority of them living in Australia. The applicant is now at the requisite age, she is retired and currently receives a pension and widow allowance from Finland, and she is less of a financial burden on Australia. Given the applicants relatively advanced age, absent a lawful basis to remain in Australia, she would likely be required to return to their country of citizenship, Finland, which as at the time of decision was severely impacted by the COVID-19 pandemic, a virus to which she would be particularly vulnerable given her age and living on her own without family support.

21. Having regard to the circumstances identified, the Tribunal has decided to refer the matter for consideration of Ministerial intervention.

    DECISION

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

    Russell Matheson
    Member