To (Migration)

This matter concerned an application for an Aged Parent (Residence) (Class BP) visa, Subclass 804, made by Ms To. The application was initially lodged by Ms To and her husband, Mr Van Phung To, on the basis that they were parents of a settled Australian citizen. Mr To passed away after the application was lodged, making Ms To the primary applicant. The dispute centred on whether Ms To met the eligibility criteria for the visa, specifically the definition of an "aged parent" and whether the Minister should intervene in the decision.

The primary legal issue before the Tribunal was whether Ms To satisfied the criteria for a Subclass 804 visa, particularly cl 804.212(1) and cl 804.221 of the Migration Regulations 1994, which require the applicant to be an "aged parent" of a settled Australian citizen at the time of application and decision. A secondary issue was whether Ministerial intervention under s 351 of the Migration Act 1958 was warranted.

The Tribunal reasoned that the definition of "aged parent" in reg 1.03 of the Regulations, read with s 23(5A) of the Social Security Act 1991, required a woman born between 1 January 1954 and 30 June 1955 to be 66 years old to qualify. Ms To, born on 12 October 1954, was 64 years old at the time of application on 28 October 2018 and therefore did not meet the definition of an "aged parent". As this criterion was not met, and the Tribunal has no discretion to disregard it, Ms To did not satisfy the requirements for the visa. The Tribunal also considered the criteria for Ministerial intervention but concluded that the decision under review should be affirmed.