1407338 (Migration)

1407338 (Migration) [2015] AATA 3240 (31 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Tao Feng
VISA APPLICANT:  Ms Jianyue An
MRT CASE NUMBER:  1407338
DIBP REFERENCE(S):  OSF2012/091949
MEMBER:Belinda Mericourt
DATE:31 July 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:
· cl.143.211 of Schedule 2 to the Migration Regulations; and
· cl.143.212 of Schedule 2 to the Migration Regulations; and
· cl.143.221 of Schedule 2 to the Migration Regulations.

Statement made on 31 July 2015 at 10:29am

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 March 2014 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) Subclass 143 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied to the Department of Immigration and Border Protection for a Contributory Parent (Migrant) (Class CA) visa on 30 July 2012.
The delegate refused the visa application as the delegate was not satisfied that the applicant’s sponsor was a settled Australian citizen or Australian permanent resident who usually resided in Australia and therefore did not satisfy cl.143.228 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
On 17 April 2014 the applicant’s sponsor, hereafter referred to as the review applicant, lodged an application for review of the Department’s decision.
The review applicant appeared before the Tribunal on 29 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via teleconference. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The review applicant is the visa applicant’s sponsor and her son. He was born in March 1981 in China. He is married and has one son. On 10 February 2005 he was granted a student visa (subclass 573) and he entered Australia on 18 February 2005. On 24 April 2007 he was granted a Skilled - Independent visa (subclass 880). He was granted Australian citizenship on 24 June 2010.
Department movement records indicate that since being granted permanent residence on 24 April 2007 the review applicant has departed and returned to Australia on the following dates:
·departed Australia 21 January 2008 - returned 21 June 2008;
·departed Australia 6 August 2010 - returned 26 July 2012;
(30 July 2012 lodged application)
·departed Australia 29 July 2012 - returned 10 February 2013;
·departed Australia 15 December 2013 - returned 10 February 2014.
On 7 February 2014 the Department invited the applicant to provide additional information related to whether his sponsor was a settled Australian citizen.
On 13 February 2014 the applicant’s authorised migration representative provided a submission stating that the applicant has resided in Australia for nearly 5 out of the past 7½ years. He is an Australian share trader and his trading bank account is with Bank West Australia and he has significant savings in Australia. His intention has always to reside permanently in Australia. The reasons for the applicant’s sponsor’s absence for the past 2½ years are that his grandmother was widowed in January 2007 and her health is poor so the sponsor spent some time living with her. In 2010, the sponsor and his wife were living near a busy and noisy street in Sydney. When they planned the birth of their child they chose to live in a remote city in New Zealand for a while and told the baby was born and grew fit to travel. Therefore his absence is due to compelling and compassionate circumstances.
In the Decision Record dated 21 March 2014, the delegate stated that she was not satisfied that the applicant was a parent of a settled Australian citizen as her son (her sponsor) had resided in Australia for a total of 12 days in the two years prior to the date the application was lodged on 30 July 2012. Department policy considers two years is a reasonable period in assessing whether a person was a ‘settled’ Australian citizen. She did not consider his absence was due to compassionate and compelling circumstances.
On 30 July 2015 the review applicant’s authorised migration representative provided the Tribunal with the following:
·a submission from the applicant’s authorised migration representative, that the review applicant could demonstrate he had been a ‘settled’ Australian citizen, and his intention had always been to reside in Australia and there were compelling circumstances for his protracted stay in New Zealand and extended visits to China;
·a letter from the review applicant dated 28 July 2015 describing the reasons for his absence from Australia. He and his spouse visited China between 22 January and 20 June 2008 for their ‘public’ wedding celebrations and in order to spend time with their families. In January 2010 his spouse became pregnant. They were living in shared accommodation in an apartment where living conditions were poor. They decided they needed to live in a quiet place. They had friends who resided in Hamilton, New Zealand who recommended they have their child there as they were also expecting a baby and Hamilton was small, quiet and much less expensive than Sydney. They travelled to New Zealand in August 2010. In May 2011 they took their child to China to visit their parents and grandparents. The review applicant’s grandmother was ill and they remained in China until December 2011 when they returned to New Zealand. They did not consider New Zealand to be their permanent home and always intended to return to Australia. They returned to Australia after their son had turned two in February 2013. His wife and son continued living in New Zealand between December 2013 and 29 April 2014 when she returned to Australia permanently;
·a supporting statement from the review applicant’s spouse stating that after she fell pregnant they decided to move to New Zealand where they could afford their own accommodation and have their child where she would be supported by her friend who was pregnant the same time and her intention had always been to remain in Australia;
·documents relating to the review applicant’s employment in Australia including ATO tax notices of assessment for 2007-2010, 2013 and 2014; AMP superannuation account opened in November 2007; BankWest trading account statements from June to November 2012 indicating Australian share trading activity and tax summary and statement of transactions for Australian share trading for the financial years 2008/09, 2009/10 and 2010/11;
·medical reports relating to the review applicant’s maternal grandmother hospitalisations in 2011, 2012 and 2013;
·various documents relating to evidence of the review applicant’s residence, employment and savings in Australia since 2013.
TRIBUNAL HEARING
The review applicant told the Tribunal that he returned to China in January 2008 to have a wedding ceremony in both his wife’s and his cities and to visit their parents and family including his ill grandmother who was living with his parents. As both he and his wife are only children and their families reside in different cities they both felt it was culturally important to conduct two traditional marriage ceremonies - one in each city for each family.
In 2010 the review applicant’s spouse became pregnant. At the time they were living in shared accommodation with another couple who worked shift work. Their apartment was located on a busy road and the room they occupied was damp and cold and had no sun during the winter months. The other couple would come home late from their shift work and cook in the middle of the night. The review applicant’s spouse had chronic morning sickness and her condition became worse with the smell of cooking and the damp conditions in their apartment. She became increasingly distressed and they looked for alternative accommodation. As the review applicant was earning very little money (approximately $400 a week) and they were partly financially dependent on their parents they could not afford accommodation in Sydney and looked for accommodation in Wollongong where the review applicant had been a student. However, finding suitable accommodation was very competitive and they were unsuccessful. In the meantime, the review applicant’s wife’s close friend who resided in Hamilton New Zealand had also become pregnant. She was due to give birth four months before the review applicant’s wife. She told them that accommodation was very inexpensive and readily available in New Zealand and suggested that they move there during the review applicant’s wife’s confinement and for the birth of their child.
When they had no success finding alternative accommodation in Australia and the review applicant was able to maintain his employment from New Zealand by working at home, they decided to move to New Zealand in August 2010. Their friends helped them to find accommodation within a couple of days and gave them a lot of practical assistance. His wife’s friend’s baby was one month old when they arrived in Hamilton. As both the review applicant and his wife are only children they had no experience with babies or young children and were very dependent on their friends in New Zealand.
Their son was born on 14 November 2010. The review applicant applied for Australian citizenship for their son as soon as possible. When his son was old enough to travel (about 5 months) they travelled to China to introduce their son to their families. At that time his grandmother was not well and in hospital and so they stayed there from May to December 2011. They had planned to have a short trip to China and then return to Australia but the review applicant’s wife did not want to return to the situation in Australia that they were in before where they were sharing accommodation in an unsuitable apartment. She described the situation to the Tribunal as so traumatising that she was fearful about returning to a similar situation. The review applicant and his wife had a number of arguments about whether they should return to Australia or New Zealand which resulted in some marital problems. However, as his son was still breastfeeding and his relationship was long-standing and important to him the review applicant felt he had no choice but to agree with his wife to return to NZ.
The review applicant and his spouse told the Tribunal that they have always considered Australia to be their home and that the move to NZ was temporary for personal reasons. The review applicant maintained his share trading business with a company in Australia instead of using an international ‘platform’. He continued to pay brokerage fees in Australia and he maintained his bank accounts with BankWest in Australia during the entire period he was residing in China and New Zealand. He provided the Tribunal with documentation relating to his employment, brokerage fees and taxes and bank statements.
When they returned to Australia in February 2013 they lived in Cairns as that was much more affordable, however, as they knew no one there they moved to Wollongong in August 2014 when they were financially able to afford suitable accommodation there. The review applicant’s wife now has a part-time job while their son is in kindergarten three days per week.
The review applicant told the Tribunal that in NZ they could have sponsored his mother without paying the contributory parent fee for the visa but they never considered it because they wanted to live in Australia. He applied for Australian citizenship as soon as he possibly could in 2010. A lot of factors came together at the same time in mid-2010 – his wife’s illness during her pregnancy, their small damp room with no sun and cooking smells, and noisy street. They would never have gone to New Zealand except for these factors combined with the fact that he was able to continue to engage in share trading in Australia from home in New Zealand.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant legislation is set out as an attachment to this decision.
The issue in the present case is whether the applicant is the parent of a person who is a ‘settled’ Australian citizen both at the time of application and at the time of decision.
The meaning of ‘settled’ in regulation 1.03 is ‘lawfully resident in Australia for a reasonable period’. In the context of the definition of ‘settled’ in r.1.03 it has been held that it should be interpreted to mean ‘ordinarily’, ‘habitually’ or ‘usually’ resident.[1] Generally speaking, the term has been interpreted as incorporating two elements, that is physical presence in a particular place and the intention to treat that place as home. ‘Reasonable period’ is also not defined in the Act or Regulations. Under Departmental guidelines (PAM3), two years is generally considered to be a ‘reasonable period’, although when assessing whether or not a person is ‘settled’, policy is that each case is to be considered on an individual basis. A shorter period of lawful residence may be considered for Australian citizens where there are compassionate and compelling circumstances. What constitutes a ‘reasonable period’ for the purpose of the definition of ‘settled’ may also depend on the steps the person in question has taken to establish his or her residence in Australia.
[1] Naiker v MIMIA [2002] FCA 888 (Hely J, 18 July 2002) at [27], citing Re S (2000) 142 ACTR 12, 14.
The Tribunal only considered the applicant’s sponsor’s residence in Australia from the time that he first was granted permanent residency on 24 April 2007 to the date the application was lodged to determine whether he was a settled Australian permanent resident or Australian citizen for a reasonable period at the time of application on 30 July 2012.
There is no dispute that the applicant had only resided in Australia for a total of 12 days in the two years immediately prior to the date the application was lodged. The total period between grant of permanent residency and lodging the application is 1983 days (5 years and 3 months). The review applicant resided in Australia for a total of 994 days during this period (approximately 2 years and 9 months). The review applicant has consistently resided in Australia since his return on 10 February 2013.
The review applicant has argued that his absence from Australia after his permanent residence was granted and for the two years immediately prior to lodging the application was due to compelling and compassionate reasons, that is, the need to find an affordable and suitable place to live during his spouse’s confinement where she could be adequately supported by her friend; and the strong family and cultural reasons to return to China twice, once for their traditional marriage ceremonies and once to introduce their son to their families (their only grandchild).
The review applicant has also claimed that his intention has always been to reside in Australia and that since the grant of his student visa in February 2005 he has worked towards that goal. He has provided documentation related to his employment, bank statements and tax notices to support this claim.
The Tribunal found the review applicant and his spouse’s evidence to be consistent and plausible in respect of the very difficult time that the applicant’s spouse was having during her confinement and consequently her strong need for psychological support during her pregnancy and in the early months after the birth of her son. The Tribunal accepts that moving to more affordable accommodation in Australia would have led to social isolation and further difficulties for the review applicant’s spouse. The Tribunal considered whether their stay outside Australia for such a lengthy period was ‘reasonable’ in terms of the legislation. However, the Tribunal is satisfied that the review applicant’s intention has always been to reside in Australia, given he maintained his employment with an Australian based company, paid taxes and maintained his savings in Australia during the entire period of his residence in China and New Zealand.
Based on the above information the Tribunal is satisfied that the visa applicant is the parent of a person who was a settled Australian citizen at the time of application and she therefore satisfies cl.143.211(1)(a)(i).
The Tribunal is satisfied that the visa applicant has been sponsored by her child who is over the age of 18 years and who is a settled Australian citizen and she therefore satisfies cl.143.212(2).
The Tribunal is satisfied that the visa applicant continues to meet the requirements in cl.143.211 and she therefore satisfies cl.143.221.
DECISION
The Tribunal remits the application for Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:
·cl.143.211 of Schedule 2 to the Migration Regulations; and
·cl.143.212 of Schedule 2 to the Migration Regulations; and
·cl.143.221 of Schedule 2 to the Migration Regulations.
Belinda Mericourt 31 July 2015
Member
ATTACHMENT – Subclass 143 Contributory Parent
143.1 Interpretation
143.111
In this Part, a reference to an applicant who is the holder of a Subclass 173 (Contributory Parent (Temporary)) visa means a person:
(a) who, at the time of application, holds a Subclass 173 (Contributory Parent (Temporary)) visa; or
(b) who has held a Subclass 173 (Contributory Parent (Temporary)) visa at any time in the 28 days immediately before making the application; or
(c) in relation to whom the Minister is satisfied that compassionate and compelling circumstances exist for the person to be considered to have been the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of the application.
143.2
143.21 Criteria to be satisfied at time of application
143.211
(1) The applicant is:
(a) a of a person (the child) who is:
(i) a settled Australian citizen; or
(ii) a settled Australian permanent resident; or
(iii) a settled eligible New Zealand citizen; or
(b) a person who:
(i) either:
(A) is the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application; or
(B) both:
(I) was the holder of a Subclass 173 (Contributory Parent (Temporary)) visa; and
(II) is the holder of a substituted Subclass 600 visa at the time of application; and
(ii) is no longer the of a described in paragraph (a) because the child has died; and
(iii) is not the of another described in paragraph (a).
(2) If the applicant:
(a) is at the time of application; and
(b) is not the holder of a substantive visa;
the applicant satisfies criterion 3002.
143.212
(1) The applicant is:
(a) sponsored in accordance with subclause (2) or (3); or
(b) taken, under subclause (4), to be sponsored in accordance with this clause.
(2) If the has turned 18, the applicant is sponsored by:
(a) the child; or
(b) the child's cohabiting or , if that spouse or de facto partner:
(i) has turned 18; and
(ii) is:
(A) a settled Australian citizen; or
(B) a settled Australian permanent resident; or
(C) a settled eligible New Zealand citizen.
……….
143.213
For an applicant who, at the time of application, is neither:
(a) the holder of a Subclass 173 (Contributory Parent (Temporary)) visa; nor
(b) the holder of a substituted Subclass 600 visa;
the applicant satisfies the .
143.22 Criteria to be satisfied at time of decision
143.221
The applicant continues to meet the requirements set out in clause 143.211.
143.222
If a sponsorship of the kind mentioned in subclause 143.212(2) or (3) was in force in relation to the applicant at the time of application, a sponsorship of that kind, approved by the Minister, is in force in relation to:
(a) the sponsor at the time of application; or
(b) another sponsor who meets the requirements set out in subclause 143.212(2) or (3);
whether or not the sponsor was the sponsor at the time of application.

[2015] AATA 3240

31 July 2015

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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