Xie (Migration)

[2017] AATA 1203

Xie (Migration) [2017] AATA 1203 (11 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Long Xie
Mrs Zhongying Zhang

CASE NUMBER:  1708089

DIBP REFERENCE(S):  CLF2015/25744

MEMBER:Hugh Sanderson

DATE:11 July 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 864 visa:

·cl.864.212(a) of Schedule 2 to the Regulations.

Statement made on 11 July 2017 at 11:06am

CATCHWORDS

Migration – Contributory Aged Parent (Residence) (Class DG) visa – Subclass 864 – Payment of fee – Immigration clearance – Non-payment of second instalment visa charge – Departed Australia – Department’s email notification not received – Evidence of applicants’ financial capacity to pay fee

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 864.411, cl 864.212(a)

Social Security Act 1991

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 to refuse to grant the applicants Contributory Aged Parent (Residence) (Class DG) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 1 May 2015. The delegate refused to grant the visas on 27 March 2017.

2. The delegate made the decision on the basis that the visa applicants did not meet the criteria in cl.864.411 as they had not paid the second instalment of the visa application charge and were not in immigration clearance.

   Background

3. The applicants are the parents of Dan Xie who has been granted a subclass 801 Partner (Residence) visa and has the right to reside permanently in Australia. She currently holds a subclass 155 Return Resident visa. She is their sponsor for the subclass 864 Contributory Aged Parent visa.

4. The applicants applied for a Contributory Aged Parent visa on 1 May 2015. At the time of the application, the visa applicants were aged 70 and 68 years old. Various documents were provided in support of the application, including the parties’ passports, birth certificates, marriage certificates and other material in support of the application.

5. The Department wrote to the applicants at their daughter’s email address on 15 December 2015 requesting the payment of the second instalment of the visa application charge. Payment was due to be made within 28 calendar days. No response was received to this letter sent by email and no follow-up reminder was sent by the Department. The visa applicants departed Australia on 1 September 2015 in accordance with the subclass 600 Visitor visas which had been granted to them.

6. The delegate who considered the application noted the second visa application charge had not been made. The delegate declined the application on the basis that the applicants were not in Australia when the visa was granted, noting the second instalment of the visa application charge had not been paid, and therefore the visa applicants did not meet the criteria in cl.864.411.

   Information to the Tribunal

7. The applicants’ agent wrote to the Tribunal claiming the applicant has never received the email sent by the Department requesting the second payment. The agent noted that the total amount of $87,200 was required to be paid. Evidence was provided of an NAB account in the name of the sponsor and her husband with a balance of in excess of $89,000. It was submitted on behalf of the applicants and the sponsor that they were ready, willing and able to pay to the Department the second visa application charge immediately.

   Consideration of the application

8. At the time of the application, the first named visa applicant was 70 years old. This is old enough to be granted an age pension under the Social Security Act 1991. Accordingly, the first named visa applicant meets the definition of an aged parent.

9. The sponsor of the applicant holds a subclass 801 Partner (Residence) visa. She has the right to reside permanently in Australia. She has been primarily residing in Australia since 2009. She and her husband have a number of investments in Australia and are currently both working in Australia. The Tribunal finds that at the time of the application the sponsor was an Australian permanent resident who has been lawfully resident in Australia for a reasonable period. Accordingly, the sponsor meets definition of a settled Australian permanent resident. She is the daughter of the visa aplicants.

10. As the first named visa applicant is an aged parent of the sponsor who is a settled Australian permanent resident, the first named visa applicant meets the criteria in cl.864.212 for the grant of the visa.

11. As the first named visa applicant meets this criteria for the grant of the visa, the applications for both the first and second named visa applicants are remitted to the Department to be reconsidered in full. It is noted that the decision of the Department was prompted of the basis that the applicants had not advised that the second instalment of the visa application charge was able to be paid. The applicants have now provided information which confirms that they are in a position to pay this charge immediately.

    DECISION

12. The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 864 visa:

    ·cl.864.212(a) of Schedule 2 to the Regulations.

    Hugh Sanderson
    Member