Walker (Migration)

[2018] AATA 1565

Walker (Migration) [2018] AATA 1565 (6 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Maisie Walker

CASE NUMBER:  1703614

DIBP REFERENCE(S):  CLF2007/657

MEMBER:Moira Brophy

DATE:6 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Aged Parent (Residence) (Class BP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 804 (Aged Parent) visa:

·cl.804.224 of Schedule 2 to the Regulations.

Statement made on 06 April 2018 at 12:02pm

CATCHWORDS

Migration – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – Assurance of support (AoS) provided

LEGISLATION

Migration Act 1958, s. 65

Migration Regulations 1994, Schedule 1, Schedule 2, cl 804.224,

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 and Border Protection 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 20 December 2006. 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.804.224.

3. The delegate refused to grant the visa on 15 February 2017 on the basis that cl.804.224 was not met because the applicant had not provided an Assurance of Support (AOS).

4. The applicant, Mrs Maisie Walker appeared before the Tribunal on 6 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter Ms Jaclyn Grice and from her granddaughter Ms Sandy Collins.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. One of the requirements contained in clause 804.224 is that an Assurance of Support in relation to the applicant has been accepted by the Secretary of the Department of Family and Community Services.

Has the Assurance of Support been made and accepted?

1. Prior to hearing the review applicant obtained from the relevant government department a letter dated 24 May 2017 confirming the assurance of support application lodged on 22 February 2017 had been accepted. This was provided to the Tribunal on 24 February, 2018.

2. As the applicant has now provided an assurance of support the applicant meets the criteria in cl.804.224 at the time of this decision.

10.Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 804 visa.

DECISION

11.The Tribunal remits the application for an Aged Parent (Residence) (Class BP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 804 (Aged Parent) visa:

·cl.804.224 of Schedule 2 to the Regulations.

Moira Brophy
Member