Vo (Migration)

[2020] AATA 5988

Vo (Migration) [2020] AATA 5988 (23 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Ly Vo

CASE NUMBER:  1928768

DIBP REFERENCE(S):  CLF2016/56925

MEMBER:M. Edgoose

DATE:23 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 23 November 2020 at 7:21am

CATCHWORDS

MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – applicant’s wife has not satisfied PIC 4001 and PIC 4005–decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 804.226

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 (the Act).

2. The applicant applied for the visa on 19 September 2016. 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.804.226.

3. The delegate refused to grant the visa on 26 September 2019 on the basis that cl.804.226 was not met by the applicant because there was no information before the delegate that the non-migrating spouse of the applicant had satisfied Public Interest Criteria (PIC) 4001 and PIC 4005.

4. On 22 October 2020 the Tribunal formally invited the applicant through his migration agent to attend a hearing on 27 November 2020. On 20 November 2020 the applicant through his migration agent submitted a response to the hearing invitation. The applicant ticket ‘NO’ to taking part in the hearing scheduled for 27 November 2020. By ticking ‘NO’ on the invitation response the applicant consented to the Tribunal making a decision on the papers without taking further steps to allow the applicant to appear. Therefore, the Tribunal has proceeded to make a decision based on the information before it. 

5. The applicant was represented in relation to the review by his migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. To satisfy cl.804.226(2) the following must be met at time of decision.

   At time of decision each member of the family unit who is not an applicant for a Subclass 804 visa is a person who satisfies the public interest criteria mentioned in the item in the table that relates to the applicant.

8. At time of this decision the Tribunal finds the applicant does not satisfy cl.804.226(2)(1) in Schedule 2 of the Regulations as the non-migrating spouse, the applicant’s wife, has not satisfied PIC 4001 and PIC 4005. Therefore, the applicant does not meet the requirements of cl.804.226.     

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

   DECISION

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

    M. Edgoose
    Member