Zhu (Migration)

[2021] AATA 2743

Zhu (Migration) [2021] AATA 2743 (28 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Xuehua Zhu
Mr Yujun Han

CASE NUMBER:  1917945

DIBP REFERENCE(S):  CLF2019/27748

MEMBER:Linda Holub

DATE:28 July 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Contributory Aged Parent (Residence) (Class DG) visas.

Statement made on 28 July 2021 at 1.36 pm

CATCHWORDS
MIGRATION – Contributory Aged Parent (Residence) (Class DG) visa – Subclass 864 (Contributory Aged Parent) – age requirement – first applicant aged four days less than required age – circumstance beyond applicants’ control – application by mail delivered faster than expected – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 864.212, 864.321

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 on 4 July 2019 to refuse to grant the visa applicant a Contributory Aged Parent (Residence) (Class DG) Subclass 864 visa under s.65 of the Migration Act 1958 (the Act)

2.    The visa applicants applied for the visa on 24 June 2019. The delegate refused to grant the visa on the basis that the first named applicant (being the primary applicant) was born on 29 December 1953 and therefore at the time of application was aged 65 years, 5 months and 26 days and as such he (the delegate incorrectly referred to the first named applicant with the male pronoun ) does not therefore meet the definition of an "Aged Parent". On that basis, the delegate found that the first named applicant, did not meet Clause 864.212 and therefore did not meet the requirements for the grant of a Contributory Aged Parent Visa.

3.    In relation to the secondary applicant, who is the husband of the first named applicant, the delegate found that as he was born on 5 March 1955 at the time of application he was aged 64 years, 3 months and 19 days and as such he did not therefore meet the definition of an "Aged Parent". The delegate incorrectly referred to the second named applicant with the female pronoun. The delegate found that given the secondary applicant was not an aged parent (at least 66), or the holder of a substituted Subclass 600 visa, that he did not meet Clause 864.212. In addition, the delegate found that as the primary applicant was refused a Contributory Aged Parent Visa on 4 July 2019 and therefore did not hold a Subclass 864 visa, the applicant is not a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 864 visa, and therefore found the second named applicant does not meet clause 864.321.

4.    The applicants appeared before the Tribunal on 26 July 2021 to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were expressed by the applicant in regard to the hearing being conducted in this way nor was there any indication that he had any difficulty in understanding and responding to the questions being put. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present argument.

5.    The Tribunal also received oral evidence from the applicants’ son. It was agreed that he would speak on their behalf given their age and the telephone hearing, although the Tribunal ensured that the applicants were actively engaged in the proceedings.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

RELEVANT LAW

7. A visa cannot be granted unless the relevant criteria specified in the Migration Act and the Migration Regulations are satisfied. Clause 864.212 requires that the applicant is the aged parent of a person (the child) who is a settled Australian citizen; or a settled Australian permanent resident; or a settled eligible New Zealand citizen. Regulation 1.03 defines an aged parent as a parent who is old enough to be granted an age pension under the Social Security Act 1991.

8.    The Department of Social Services website outlines the following age requirements in respect of the age pension:

Age Requirements

The pension age will be gradually increased from 65 to 67 years as set out in the table below[1]

[1] Age Pension  | Department of Social Services, Australian Government (dss.gov.au), accessed 26 July 2021.

Period within which a person was born	Pension age	Date pension age changes
From 1 July 1952 to 31 December 1953	65 years and 6 months	1 July 2017
From 1 January 1954 to 30 June 1955	66 years	1 July 2019
From 1 July 1955 to 31 December 1956	66 years and 6 months	1 July 2021
From 1 January 1957 onwards	67 years	1 July 2023

CONSIDERATION OF CLAIMS AND EVIDENCE

9.    The issue in the present case is whether the applicants meet the definition of an aged parent as outlined in Regulation 1.03 and whether the secondary applicant is a is a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 864 visa.

1. In an undated letter to the Tribunal the applicants’ son stated that they were seeking a review of the refusal decision because:

   a.They considered that the delegate had made a mistake in the decision by referring to the applicants as holding Visitor Subclass FA 600 at the time of application (24 June 2019) on the basis of the applicant’s visa grant notice referring to their visas as Visitor (subclass 600). A copy of which was provided to the Tribunal.

   b.In relation to the delegate’s finding that the applicant did not meet the definition of an "Aged Parent", the letter stated that they thought Australia Post normally need one week to deliver the application, but it did not take that long. The letter stated that they sent the mail on 22 June 2019 and that on this occasion the delivery was really fast, and it was received on 24 June 2019: 4 days early. The applicants’ son wrote they agree it was their mistake. He wrote that as they have provided all the necessary documents and paid $5800 for the application and his mother meet the definition of an "Aged Parent" from 29 June 2019, they would like the case reopened.

Oral evidence

1. The Tribunal outlined that the applicants must meet the definition of aged parent which in the case of this visa type means a parent who is old enough to be granted an age pension under the Social Security Act 1991.

2. The dates of birth of the applicants were confirmed.

3. In respect of the primary applicant who was born on 29 December 1953, she must have turned 65 years and 6 months by the date of application. The applicants’ son agreed she had not done so. The Tribunal explained that it has no scope to change the fact that the application was received by the Department in advance of when the first named applicant had turned 65 years and 6 months.

4. When asked if she wanted to make any comment, the applicants’ son explained that one factor that they would like to take into consideration is when Australia Post delivered the application. He stated that it was out of their control.  He stated they had allowed one week for the application to be received but it had arrived much earlier than that. The Tribunal explained that it is prepared to accept that Australia Post delivered the application faster than they expected. The Tribunal explained that it had read their letter but that does not change the fact that the primary applicant was not yet 65 years and 6 months at the time of application. The Tribunal also explained again that it has no discretion on the matter.  

5. In relation to the secondary applicant, the Tribunal discussed the fact that given his date of birth is 5 March 1955. The Tribunal noted that he did not met the age requirements which in his case are that he would have turned 66 years and 6 months. This was also confirmed by the applicants. The Tribunal explained that as the first named applicant did not satisfy the age requirements the secondary applicant is not a member of the family unit of a person who holds the necessary visa.

6. The Tribunal was asked if there is any possibility the applicants could lodge another application again. The Tribunal explained they would need to seek advice from a migration agent or lawyer or from the Department of Home Affairs. The Tribunal was also asked whether the applicants will be required to depart Australia within 35 days. The Tribunal explained that they would need to discuss this with the Department.

Findings

1. The Tribunal is prepared to accept the applicants posted their applications ahead of time in the anticipation that they would take longer to arrive then they actually did. As a result of this the application of the first named applicant arrived prior to her having turned 65 years and 6 months.

2. Based on the evidence before the Tribunal, the first named applicant was born on 29 December 1953 and therefore at the time of application was aged 65 years, 5 months and 26 days and therefore she does not therefore meet the definition of an "Aged Parent". For that reason, the first named applicant, does not meet Clause 864.212 and therefore she does not meet the requirements for the grant of a Contributory Aged Parent Visa.

3. The evidence before the Tribunal is that the secondary applicant was born on 5 March 1955 at the time of application, he was aged 64 years, 3 months and 19 days and therefore he does not therefore meet the definition of an "Aged Parent". For that reason he does not meet Clause 864.212.

4. The Tribunal finds that as the primary applicant does not meet the requirements for a Contributory Aged Parent Visa and therefore does not hold a Subclass 864 visa, the secondary applicant is not a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 864 visa, and therefore the second named applicant does not meet clause 864.321.

5. The Tribunal considered the comments made in the written letter to the Tribunal regarding the fact that in the decision the delegate referred to the applicants as holding a Visitor Subclass FA 600 whereas the visa type referred to as a Visitor (subclass 600) in their visa grant notice. While this is correct, the delegate did not make an error by referring to the full title of the visa type and in any event, it does not alter the fact that the applicants did not meet the eligibility requirements

DECISION

1. The Tribunal affirms the decision not to grant the applicants Contributory Aged Parent (Residence) (Class DG) visas.

Linda Holub
Member