Vo (Migration)

[2023] AATA 4168

Vo (Migration) [2023] AATA 4168 (29 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Thu Thanh Vo

CASE NUMBER:  1927496

HOME AFFAIRS REFERENCE(S):          CLF2017/4081 

MEMBER:Deputy President Justin Owen

DATE:29 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Contributory Aged Parent (Temporary) (Class UU) Subclass 884 visa.

Statement made on 29 November 2023 at 10:57am

CATCHWORDS
MIGRATION – Contributory Aged Parent (Temporary) (Class UU) visa – Subclass 884 (Contributory Aged Parent (Temporary)) – age requirement – not eligible for age pension at time of application – wrong visa applied for by error – attempted corrected application still for this subclass – emotional and financial hardship – care for elderly mother, who is totally dependent – request for referral for ministerial consideration declined – applicant can apply directly – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 884.212, 884.311

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 on 11 September 2019 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 (Cth) (the Act).

2. The visa applicant is a female 67-year-old Vietnamese national. The visa applicant applied for the visa on 30 December 2016. The delegate refused to grant the visa on the basis that at the time of application the visa applicant did not meet the definition of an aged parent according to reg 1.03 and subsequently did not meet cl 884.212. The delegate noted at the time of application the visa applicant was 60 years and seven months of age, and subsequently not of the age required to receive an age pension as per the Social Security Act 1991 (Cth) at the time of application, which was at least 66 years and six months of age.

3. The visa applicant appeared before the Tribunal via Microsoft Teams on 15 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The visa applicant was represented in relation to the review.  The visa applicant’s representative attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether, at the time of application, the visa applicant met the definition of an aged parent according to reg 1.03 and subsequently satisfied the requirements of cl 884.212 and cl 884.311.

7. The Tribunal discussed the delegate’s reasoning for his decision to refuse the application with the visa applicant at the Tribunal’s hearing. The Tribunal discussed the time of application requirements of a Contributory Parent (Temporary) (Class UU) Subclass 884 visa which included the need for the visa applicant to meet the definition of an ‘aged parent’ as defined by reg 1.03 at the time she lodged her visa application in December 2016. The Tribunal explained that at the time she applied, a woman born on her date of birth of 2 May 1956, was required to be at least 66 years and six months of age to meet the definition of an ‘aged parent’ in reg 1.03 and subsequently be old enough to be granted an age pension under the Social Security Act 1991 (Cth).

8. The visa applicant at the Tribunal’s hearing confirmed she was born on 2 May 1956. The Tribunal furthermore notes the copy of her biodata page of her passport that confirms her date of birth is 2 May 1956. 

9. The Tribunal explained at the hearing that the pension age table for women in the Social Security Act 1991 stated that for women born between 1 July 1955 and 31 December 1956, the age required was 66 years and six months of age. Given she was only 60 years and seven months of age at the time of application, she did not satisfy the definition of an aged parent according to reg 1.03 and did not satisfy the requirements of cl 884.212.

10. The visa applicant confirmed orally she was born on 2 May 1956. Her date of birth is not in dispute. Given at the time of application the visa applicant did not meet the definition of an ‘aged parent’ as defined by reg 1.03, the Tribunal finds she does not satisfy the requirements of cl 884.212.

11. At the hearing the visa applicant and her representative submitted an error had been made in lodging the application in 2016. This error had led to the wrong visa being applied for. The Tribunal invited the visa applicant to make submissions on the matter post-hearing.

12. On 22 November 2023 the visa applicant through her representative provided written post-hearing submissions.  The submissions state in November 2016 the visa applicant had attended her legal representative’s office with her mother and daughter over the making of applications for a Contributory Aged Parent visa as well as a Contributory Parent visa.

13. The applications for both were lodged on 30 December 2016. 

14. The visa applicant’s representative in her submission has claimed the error in applying for the Contributory Aged Parent (Temporary) (Class UU) Subclass 884 visa was realised not long after lodgement.  She contends another lawyer at her firm had taken carriage of the matter:

    I had to retrieve her file and went through it thoroughly. I recall you Senior Member (sic) asking at the time of the hearing if there were any forms submitted to rectify the mistake. Apparently there was, Rami Youssif clarified and stated that all copies of correspondence were in the file. Apparently Mr Yousif was contacted by the case officer and clarified to her that it’s a clerical error and that he will send her the application rectified. The correct forms were sent to the case officer, please see copies of the application corrected and posted back. Attached is the two registered express post numbers.

15. The visa applicant’s representative has asserted the delegate should have found the application to be invalid rather than reject it, and claims the information was sent to the delegate correcting the information. 

16. The purportedly corrected Form 47PA provided to the delegate was sent to the Tribunal by the visa applicant’s representative as part of their post-hearing submissions.  At Question 76, the declaration is signed by the visa applicant and the form is dated 4 February 2017. 

17. The Tribunal notes the form is essentially identical to the original Form 47PA provided to the Department and received on 30 December 2016.  The Tribunal notes however from the purportedly corrected form dated 4 February 2017 that page 27 of the form that contains the visa applicant’s signed biometric declaration and consent declaration has been removed. Page 24, that contains the payment detail information at questions 70 and 71 is also blank on the 4 February 2017 form provided to the Tribunal by the visa applicant.  On the original application to the Department received on 30 December 2016, it contains payment information signed off by the representative, stating the visa applicant is applying for an ‘884’ visa. 

18. The visa applicant’s representative has also provided two Australia Post Express Post numbers as purported evidence the application was corrected and sent to the Department plus some other handwritten notes. 

19. The visa applicant through her representative has stated that after checking the file after the delegate refused the application, she ‘examined all content of the file copies of the corrected application were found and clearly the correct box was ticked for parent contributory visa’.

20. The visa applicant’s representative has stated there are three issues that the Tribunal should consider.  Namely:

    ·Ms Thi Thu Thanh Vo (the visa applicant) satisfies the contributory parent visa requirements, and that was the application that was requested by the applicant at the time. Unfortunately, due to clerical error which was rectified shortly after submission, the case officer rejected the application on the 11th September 2019.

    ·One would assume the case officer upon receiving the application and matching the information with her passport would invalidate it.

    ·This has impacted the main applicant (Thi Thu Thanh Vo) emotionally and financially. It is almost seven years since her first arrival, and she is currently caring for her elderly mother who was granted the contributory age parent Visa.

21. The Tribunal has considered the evidence before it and rejects the submissions that the circumstances as contended by the visa applicant and her representative are as such that the visa should be granted. 

22. The Tribunal has considerable doubts as to the veracity of the claims the application form was in fact ‘corrected’ by the visa applicant’s representative.  The Tribunal is of the opinion the application process has been poorly managed with a range of misunderstandings pertaining to the Contributory Parent and Parent visa process.   

23. The Tribunal notes the visa applicant, after lodging an application with the Tribunal for a review of the refusal of the decision in 2019, did claim through their representative that they had had “applied for a ‘Contributory Parent visa UT173’ but the refusal came for Aged Parent UU-884.  We never applied for an Aged Parent visa”.  The visa applicant’s representative subsequently in their application for review to the Tribunal stated they were applying for a review of a UT173 visa. 

24. The Tribunal has considered the visa applicant’s testimony, the evidence submitted through her representative and the material before it pertaining to her application.  There is no satisfactory evidence before the Tribunal to suggest the visa applicant ever applied for a Subclass 173 Contributory Parent (Temporary) visa as has been claimed.

25. The Tribunal notes that the purportedly corrected Form 47PA, provided by the visa applicant’s representative to the Tribunal post-hearing and dated 4 February 2017, still ticks the box for a Contributory Parent (Class UU) (subclass 884) visa.

26. The Tribunal has reviewed the evidence before it.  The evidence before the Tribunal, including the evidence submitted post-hearing, clearly suggests the visa applicant applied for a Contributory Aged Parent (Temporary) (Class UU) Subclass 884 visa.  The visa applicant does not meet the time of application requirement for the grant of the visa.  

27. The Tribunal for the reasons above does not accept the claim of the visa applicant’s representative that the visa applicant ‘satisfies the contributory parent visa requirements’.  As for the ‘clerical error’ that the visa applicant’s representative claims was rectified, the Tribunal notes that the Form 47PA sent to the Tribunal post-hearing, dated in February 2017, is still listed as a Contributory Aged Parent (Temporary) (Class UU) Subclass 884 visa application.  There is furthermore no evidence of a Form 1023 Notification of incorrect answer(s) ever being submitted.

28. There is no satisfactory evidence before the Tribunal whatsoever that the visa applicant ever applied for a Subclass 173 Contributory Parent (Temporary) visa.  The Tribunal does not accept the application was made. 

29. The Tribunal furthermore notes it was also open to the visa applicant to withdraw the original application well before it was determined by the delegate (particularly as it is claimed the purported error was realised shortly after lodgement) and request a refund via Form 1424 if so desired.

30. The Tribunal does not accept the contention of the visa applicant’s representative that ‘One would assume the case officer upon receiving the application, and matching the information with her passport would invalidate it’.  The application was made by the visa applicant and processed by the delegate in the usual fashion.  The visa applicant remains responsible for the lodgement of their own application, and in ensuring the application is valid and meets the criteria for the subclass visa applied for.  The Tribunal notes there is no satisfactory evidence before it of a valid application for a Subclass 173 Contributory Parent (Temporary) visa before it, even after the purported submission of corrected information by the visa applicant’s representative in 2017.  There is no evidence of a Form 1023 Notification of incorrect answer(s) ever being submitted.  There is no evidence of a valid application being made for any parent subclass visa. 

31. The visa applicant was subsequently assessed by the delegate as an applicant for a Contributory Parent (Class UU) (subclass 884) visa as that was the visa applied for. The Tribunal has reviewed the decision as an application for a Contributory Parent (Class UU) (subclass 884) visa. As discussed earlier in this decision record, the visa applicant does not meet the time of application criteria as at the time she applied in December 2016, she was required to be at least 66 years and six months of age to meet the definition in reg 1.03 of an ‘aged parent’. As she was only 60 years of age and seven months at that time, she subsequently was not of the age to be granted an age pension under the Social Security Act 1991. This matter is not in contention. The Tribunal finds the visa applicant does not satisfy the requirements of cl 884.212.

32. The Tribunal has considered the visa applicant’s claim through her representative that the refusal of the application has impacted her emotionally and financially. The visa applicant’s representative points out it has been almost seven years since her first arrival, and she is currently caring for her elderly mother who was granted the Contributory Age Parent Visa.

33. The Tribunal also notes the claim of the visa applicant’s representative that the visa applicant’s ‘only hope is that she remains with her daughter and continue to care for her elderly mother who is totally depended (sic) on her’.  

34. The Tribunal has considered these claims in the context of a request for Ministerial Intervention in this matter pursuant to s 351 of the Act. 

35. The Tribunal has carefully considered the visa applicant’s circumstances and the claims she has made that she is supporting her elderly mother.   The Tribunal has considered the visa applicant’s case and the Ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3). 

36. The Tribunal declines to support any request by the visa applicant for Ministerial Intervention in this matter.  The Tribunal has had regard to guidance the Minister has provided on the types of unique and exceptional circumstances that could be brought to the Minister’s attention. The Tribunal is not satisfied that there are strong compassionate circumstances that if not recognised would result in serious, ongoing, and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident. Whilst the Tribunal accepts the visa applicant’s mother is elderly, the Tribunal notes her adult daughter is in Australia as a permanent resident and sponsored the visa applicant’s mother to migrate to Australia. As an Australian permanent resident, the visa applicant’s mother can access government healthcare and other support.   

37. The Tribunal is not satisfied there are compassionate circumstances, based upon the evidence before it, regarding the visa applicant’s age and/or health and/or psychological state, that if not recognised would result in serious, ongoing, and irreversible harm and continuing hardship to her.

38. The Tribunal would note that the visa applicant retains the ability to apply directly for Ministerial Intervention pursuant to s 351 of the Act if she so desires. 

    DECISION

39. The Tribunal affirms the decision not to grant the visa applicant a Contributory Aged Parent (Temporary) (Class UU) Subclass 884 visa.

    Justin Owen
    Deputy President