1412982 (Migration)
[2015] AATA 3471
•6 October 2015
1412982 (Migration) [2015] AATA 3471 (6 October 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Mrs Tulahong Patiguli
VISA APPLICANTS: Mr Tuerdi Maimaitijiang
Master Musitapa MaimaitijiangCASE NUMBER: 1412982
DIBP REFERENCE(S): OSF2012/100455
MEMBER:Alan Duri
DATE:6 October 2015
PLACE OF DECISION: Sydney
DECISION:The tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.
Statement made on 06 October 2015 at 3:02pm
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 27 June 2014 to refuse to grant Mr Maimaitijiang and his son Musitapa. Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
Mr Maimaitijiang was born in Xinjiang province China in 1981.
Mr Maimaitijiang applied for the visa on 16 July 2012 on the basis of his relationship with his sponsor, Ms Patiguli.
Ms Patiguli was born in Xinjiang province China in 1982. She arrived in Australia on 30 December 2008 on a Subclass 100 visa. She has been in Australia during the following periods:
·30 December 2008 to 26 January 2009;
·23 November 2013 to 9 January 2014;
·22 April 2014 to 19 December 2014.
The delegate refused to grant the visa on the basis that Mr Maimaitijiang did not satisfy cl.309.211. The delegate was satisfied that the parties were in a genuine spousal relationship. However the delegate did not accept that the sponsorship requirements were met because at the time of the visa application Ms Patiguli was not usually resident in Australia.
Hearing
Ms Patiguli appeared by telephone before the tribunal on 30 September 2015 to give evidence and present arguments. The tribunal was assisted by a Uyghur interpreter.
Ms Patiguli was represented by her registered migration agent Mr Mehmet Celepci.
Ms Patiguli told the tribunal that she usually lives in China. She stated that the first time she came to Australia was on 30 December 2008 on her father’s visa. Ms Patiguli explained that her father came to Australia 2006. He was eventually granted a permanent visa and sponsored the rest of the family to come to Australia. Ms Patiguli stayed in Australia for about one month, returning to China on 26 January 2009. She returned to Australia on 22 November 2013 until 10 January 2014 and she also came to Australia in 2014, where she gave birth to her second child (on 5 July 2014). Her second child is with her in China, but will be returning to Australia at the end of October.
Ms Patiguli told the tribunal that before coming to Australia for the first time she just finished her studies, and had not been working. The tribunal asked why Ms Patiguli remained in Australia for one month. She replied that she had a young child who was still in China. Her eldest child was born on 29 January 2008. Ms Patiguli explained that she met the father of her child on 4 April 2007. They became engaged on 26 April 2009 following her return to China. Following her return to China in January 2009, Ms Patiguli lived with her auntie. Following her marriage she lived with her husband and child. Her husband is employed for publishing department of a government organisation. Ms Patiguli said she commenced employment as an office clerk on 15 March 2009. She ceased work last year, but the organisation has asked her to go back to work.
Ms Patiguli stated that she is living in accommodation provided by her husband’s employer and also suggested that he is purchasing the property. She indicated that she has no assets in Australia. Ms Patiguli indicated that her parents, sister and two brothers live in Australia. On the other hand, in China. She lives with her husband and eldest child.
CONSIDERATION OF CLAIMS AND EVIDENCE
Mr Maimaitijiang lodged a partner visa application on the basis that he is married to Ms Patiguli who holds an Australian permanent resident visa. Ms Patiguli’s visa history gives rise to the question of whether she was usually resident in Australia at the time of the partner visa application.
Clause 309.211 provides:
(1) The applicant meets the requirements of subclause (2) or (3).
(2) The applicant meets the requirements of this subclause if Ms Patiguli is the spouse or de facto partner of:
(a) an Australian citizen; or
(b) an Australian permanent resident; or
(c) an eligible New Zealand citizen….The term “Australian permanent resident” is defined in r.1.03:
"Australian permanent resident" means:
(a) in relation to an applicant for a Return (Residence) (Class BB) visa or a Resident Return (Temporary) (Class TP) visa--a non-citizen who is the holder of a permanent visa; or
(b) in any other case (other than in the case of an applicant for registration as a migration agent under Part 3 of the Act)--a non-citizen who, being usually resident in Australia, is the holder of a permanent visa.Ms Patiguli is the holder of a permanent visa. This leads to the question of whether she was “usually resident” in Australia at the time of the visa application.
The concept of “usually resident” is not defined in the Regulations. However this concept has been considered by case law.
In Scargill v MIMIA [2003] FCAFC 116, the Full Court of the Federal Court considered the concept of usual residence in the context of a remaining relative visa application. The Court noted that the factors of physical residency and intention were ‘essential elements’ in the notion of “usually resides”.
The test in Scargill was also considered in the matter of Rahiman v MIMIA [2006] FMCA 76, where the Court found that the tribunal was entitled to adopt a common sense approach in considering the applicant’s residence in the USA for 16 years over the 3 months residing in Australia before lodging his visa application. The Court held that it would be contrary to the ordinary meaning of the expression ‘usually resides’ to ignore the period of residence in the USA when making an assessment of usual residence at the time of application and accepted that it was not relevant to have regard to whether or not the applicant may or may not have difficulty getting back into the USA.
Regardless, case law makes clear that the question of where a person is usually resident is a question of fact for the tribunal. Nevertheless a number of factors have emerged to assist in determining where, if anywhere, a person is usually resident. Relevant factors for determining whether a person is usually resident in a place include maintaining a home in that place, going to work there, owning property, business or other interests there, family or other ties and the person’s views about the place they consider and intend to be ‘home’.
Having said this, any determination of “usually resident” is not a matter of slavishly ticking off a list of factors. It all depends on the facts of the case.
As at the time of the visa application on 16 July 2012 Ms Patiguli was in China and had not been in Australia for over three years. Even then Ms Patiguli had only been in Australia for less than one month (30 December 2008 to 26 January 2009). As at the time of the visa application, Ms Patiguli was living with her husband and child in China for some years. They were living in a property being purchased. Both Ms Patiguli and her husband were employed China. On the other hand Ms Patiguli’s parents and siblings live in Australia. All her other relatives, including a husband and eldest child live in China.
There is a suggestion that Ms Patiguli has a long term intention to reside in Australia. A person’s intention is but one of a variety of factors. The tribunal has considered all of the above circumstances but the tribunal is not prepared to accept, notwithstanding any long term intention, that Ms Patiguli was usually resident in Australia as at the time of the visa application.
It follows then that cl.309.211(2) is not satisfied because Ms Patiguli was not an Australian permanent resident within the definition of r.1.03 at the time of the visa application
For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.
DECISION
The tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.
Alan Duri
Member
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