1511646 (Migration)

[2016] AATA 4792

1511646 (Migration) [2016] AATA 4792 (13 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sichang Zhu
Ms Jie Geng

CASE NUMBER:  1511646

DIBP REFERENCE(S):  BCC2015/1126760

MEMBER:Alison Mercer

DATE:13 December 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration with a direction that the first named applicant meets the following criterion for a subclass 489 visa:

·cl.489.225(3) of Schedule 2 to the Regulations.

Statement made on 13 December 2016 at 12:42pm

CATCHWORDS

Migration – Skilled Regional Sponsored (Provisional) – Subclass 489 – Sponsor living in designated area – Significant ties to China – Wife and children in Australia

LEGISLATION

Migration Act 1958

Migration Regulations 1994, Schedule 2, cl 489.225(3)

CASES

R v Barnet London Borough Council; Ex parte Shah [1983] 2 AC 309)

Hafza v Director-General of Social Security (1985) 60 ALR 674

Scargill v MIMIA [2003] FCAFC 116 (French, von Doussa & Marshall JJ, 3 June 2003) Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241

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 14 August 2015 to refuse to grant the applicants Skilled Regional Sponsored (Provisional) subclass 489 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 15 April 2015. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet cl.489.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate noted that subparagraph (3)(c) of this clause required that the applicant’s sponsor was usually resident in a designated area of Australia. The delegate found that the applicant’s sponsor, Mr Siyao Zhu (the applicant’s brother), was not usually resident in Australia as the Department’s records indicated that since being granted permanent residence on 17 May 2011, Mr Zhu had only been resident in Australia for 500 days in total, and had only recently lodged permanent residence applications for his spouse and children, who resided in China. The delegate further found that the sponsor’s business was located in China, and that there was no evidence that he had a settled home in Australia or was living in a designated area of Australia. The delegate noted that the applicants were invited to comment on this but failed to do so. The delegate therefore found that the applicant did not meet cl.489.225(3)(c) and thus did not meet the clause as a whole. The delegate further found that the second named applicant (the applicant’s wife) did not meet the secondary visa criteria to be a member of the family unit of a person who met the primary visa criteria, and there was no evidence to indicate that she met the primary visa criteria in her own right.

3. The Tribunal received a review application from the applicants on 25 August 2015.  It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Ms Teck Moi Tan, as their representative and authorised recipient for correspondence for the purposes of the review.  The review application was also accompanied by a statutory declaration from the sponsor, Mr Siyao Zhu, dated 14 July 2015, in which he confirmed that he is the applicant’s brother, and that he is usually resident in a property in Epping (a suburb of Melbourne).  He provided a letter dated 31 May 2015 from Mr Junhong (Alan) Zhong, in which Mr Zhong states that he owns the Epping property and allows the Mr Zhu to stay there when needed and that Mr Zhu paid rent and contributed to bills when he did stay there.  Mr Zhu also provided documentary evidence indicating that he had lodged a subclass 309/100 (Offshore Partner) visa in relation to his wife and children with the Department in June 2016.  Mr Zhu also provided Vodafone bills in his name, listed as living at an address in South Melbourne, for the period July 2013 to May 2015.

4. A submission from the applicants’ agent dated 25 August 2015 was also provided, in which the following points were made:

• the entire state of Victoria was a designated area for the purposes of cl.489.225 so the only question was whether (at the time of decision), the applicant’s sponsor was ‘usually resident’ there;

• it was acknowledged the sponsor had spent less than 500 days in Australia since being granted permanent residence on 17 May 2011, and further acknowledged that he had been taking care of his family and business in China, as a result of which he did not come to Australia very much;

• nevertheless, he and his wife had been planning to settle in Australia but their plans to do so were interrupted by his wife’s pregnancy and the subsequent birth of twins;

• the sponsor arrived in Melbourne, Australia on 12 July 2015 and planned to settle here.  The sponsor’s wife and children had lodged the subclass 309/100 Partner visa application offshore in June 2015 as part of their plan to settle in Australia, for which they were sponsored by him.  They had transferred about $105,000 to Australia for initial settlement to purchase a property in which to reside, and would be transferring further funds from China to Australia in due course;

• the sponsor had been managing the family business based in China but planned to seek employment in Melbourne once settled.  It was acknowledged that he did not have a settled home in Melbourne at this point, but his friend Mr Zhong had provided accommodation up until now.  It was submitted that the sponsor had now rented a property and bought a car.  He and his wife planned to buy a property for the family to live in in Melbourne;

• although the delegate stated that the applicants had not responded to a request to provide comments on the issue of whether the sponsor was usually resident in Australia, it was submitted that documents provided to the Department by the applicants, sponsor and Mr Zhong appeared to have been overlooked;

• the Department’s Policy Advice Manual (PAM3) indicated that delegates should look for evidence such as a person’s physical presence in designated area, the length of that residence, whether that residence had been lawful or unlawful, where they eat, sleep and have a settled home, and whether the person’s intention was to make their usual home in a designated area or not;

• although the sponsor had not spent considerable time in the designated area, he had demonstrated a strong intention to do so; and

• he should be considered to be usually resident in a designated area (the state of Victoria in Australia) for the purposes of cl.489.225.

1. On 6 September 2016, the Tribunal wrote to the applicants via their agent to invite them to a hearing on 27 September 2016, which was to be a multiple applicant hearing list.  On 21 September 2016, the Tribunal wrote again to the applicants via their agent to advise that the hearing had been rescheduled as the Presiding Member considered it was not suitable for a multiple applicant hearing list, and that they would be advised shortly of the new hearing details.

2. On 24 September 2016, the Tribunal received the following additional documents from the applicants’ agent:

• Bank of Melbourne Visa statement for the period 29 March 2016 to 25 April 2016 for the sponsor, addressed to a unit in Collingwood, a suburb of Melbourne in Victoria;

• City West Water bill issued 25 June 2016 to the sponsor at the same address;

• Vodafone bill issued to the sponsor on 20 August 2016 at the same address;

• CityLink statement issued to the sponsor on 10 August 2016 for the period 11 May to 9 August 2016 at the above address for his car;

• Bank of Melbourne certificate of currency for motor vehicle insurance issued to the sponsor on 29 March 2016 for Holden Captiva, sent to the above address;

• ANZ Access Advantage Cheque statement records for the sponsor, sent to the above address, for the period 8 June 2016 to 8 August 2016;

• Simply Energy electricity account issued to ‘Mr Zhu’ at an address in Point Cook, a suburb of Melbourne, on 1 August 2016;

• Origin gas bill issued to the sponsor at the above address in Point Cook on 8 August 2016, for period 6 to 21 July 2016;

• employment reference dated 21 September 2016 indicating that the sponsor has been employed as an investment consultant at H & T Melbourne Pty Ltd since 5 February 2016, and that his current position was Associate Investment Manager; and

• residential tenancy agreement between named landlords and tenants Ling Fang, Qi Mao and the sponsor, for the above address in Point Cook, commencing 5 July 2016 for 12 months.

1. On 28 September 2016, the Tribunal wrote to the applicants via their agent to invite them to a hearing on 28 October 2016.  The Tribunal noted that it would be assisted by being able to take evidence from the sponsor at the hearing, as well as the applicants.

2. The first named applicant (the applicant) appeared before the Tribunal by conference telephone on 28 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

3. The applicant told the Tribunal that he and his wife (the second named applicant) were currently in China to look after his parents, and had been there about 6 months.  They intended to return to Australia within a few months if their visas were granted.  In relation to his brother, the sponsor, the applicant said that the main reason that his brother went back to China and stayed for as long as he did is that he had to care for his wife, who gave birth to twins in May 2015.  The sponsor returned to Australia in July 2015, while his wife and the twins arrived in May 2016.  They are renting accommodation in Melbourne with another person, Qi Mao, who the applicant assumed might be a live-in baby sitter.  The applicant said that the sponsor is working as a property manager in a property investment firm in Melbourne.  In China, he was involved in a similar business of his own, as well as their family business, but he had wound his own business in China down.  In Australia, he is doing similar work, in that he canvasses interest from Chinese people who want to invest in the Australian property market. 

4. In evidence given separately, the sponsor confirmed that he was granted Australian permanent residence in May 2011.  He was studying in Australia to become an automotive mechanic, when his then-wife was granted a subclass 856 (Employer Nomination Scheme) permanent residence visa as a Nurse, and he was also granted a subclass 856 permanent residence visa as her dependent.  The sponsor said that sometime after they were granted permanent residence, they began to have marital problems and ultimately divorced.  The sponsor described being in a very low mood after the divorce, and he returned to China in September 2012.  In response to the Tribunal asking what his intention was at that time, the sponsor said that he felt very sick emotionally and physically and wanted to spend time with his parents.  They were worried about him. They subsequently introduced him to the woman who became his current wife.  They were introduced in 2013 and then she became pregnant in 2014, and had the twins in May 2015.

5. When asked about his ties to Australia prior to returning to China in late 2012, the applicant said that he came to Australia as his first wife’s de facto partner in 2008, and he graduated from his course in 2011. During their life together, they bought a property but after they separated, she retained this because it was in her name and she had paid the deposit (although the sponsor had paid for the furnishings). They did not have any other significant assets such as a car.  The sponsor said that he kept open an ANZ bank account in Australia when he went back to China.  At that time, he did not have a definite plan about whether he would return to Australia or remain in China.  He was not well and had lost 15kgs; his main priority was to be with his parents.  After his return, his father had a period of ill-health in which the sponsor looked after him and the family trading business for approximately 3 months.  This was in 2013, after he married his present wife but before she fell pregnant. 

6. The sponsor said that in China, he initially lived with his parents, then he and his wife bought an apartment of their own in early 2013 when they got married.  They retain this and it is rented out to tenants.  He intends to sell it when the time is right in the Shanghai property market.  The sponsor said that he and his wife planned to have children once they were married but in 2013, it was a very bad year for air quality in China and they wanted to relocate to Australia to have a family, where the quality of life would be better.  The sponsor said that his wife had been to Australia before they met and liked the country, so she was agreeable to this plan.  However, they then found out that she was pregnant in or around September 2014 and this disrupted their plans as she received medical advice that she should avoid travel. 

7. The sponsor said that by this time, he had established a successful property investment business in China, referring Chinese investors to Australian developers and properties, but was confident that he could pursue a similar business in Australia.  He said that he always envisaged that he would return, which is why he kept open his ANZ bank account and updated his Victorian driver’s licence.  He is now working as an Associate Investment Manager for H & T Realty Pty Ltd, a position he has held since January 2016. 

8. The sponsor said that he came back to Australia in July 2015 when the twins were 2 months old and the situation with them and his wife was stable.  His initial plan was to find work and get accommodation ready for them to join him.  His initial plan was to go into property marketing but it was hard to find a position immediately, so he took a position as an automotive mechanic with the Toyota plant in South Melbourne until he found his present position and moved into property again.  The sponsor said that between July and September 2015, he stayed with his friend Mr Zhang at the latter’s place in Epping.  Between September 2015 and July 2016, he rented in Collingwood to be closer to his work at the Toyota plant.  Since July 2016, he has rented a property in Point Cook, which he and his wife and the twins share with a workmate, Qi Mao (not a baby sitter as speculated by the applicant).  The sponsor said that he and his wife intend to buy their own place in either Point Cook or Tarneit in the near future, as this is also a growth area for his current line of business. 

9. In response to the Tribunal’s query, the sponsor said that the twins are now 1.5 years old and that his wife is at home full time with them.  However, she had previously worked for an overseas student placement business in China, and they considered it likely she would be able to find a similar position in Australia.  Their plan was that she should return to work when the twins were 2.  In the meantime, his wife had obtained her Victorian driver’s licence and he had applied for a Tax File Number for her and opened an account with ANZ in her name. 

10. The sponsor said that his intention was to remain permanently in Australia but the situation for his wife was more difficult as her parents wanted to see their grandchildren often.  He said that he anticipated having both sets of parents to visit Australia regularly to spend time with them and their grandchildren, especially if the applicant is successful in being granted a subclass 489 visa to return, as he and his wife wish to do.

11. The sponsor said that he considered Australia his home, although that question was harder to answer earlier in his life when he had ties to both countries.  However, he said that since having children, his and his wife’s feeling was much clearer that Australia was where they wanted to be their and their children’s home. He stated that he had returned for these reasons, and not just to assist his brother’s subclass 489 visa application.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether, at the time of the Tribunal’s decision, cl.489.225(3) is met. In summary, this requires that the Minister has accepted a sponsorship where:

   ·     the sponsor has turned 18 (cl.489.225(3)(a));

   ·     the sponsor is an Australian citizen or permanent resident or eligible New Zealand citizen (cl.489.225(3)(b));

   ·     the sponsor is usually resident in a designated area of Australia (cl.489.225(3)(c));

   ·     the sponsor is a specified relative to the applicant, or to the applicant’s spouse or de facto partner (cl.489.225(3)(d)); and

   ·     each member of the applicant’s family unit who is a subclass 489 visa applicant is sponsored by the sponsor (cl.489.225(3)(e)).

2. From the material on the Department and Tribunal files, the Tribunal is satisfied that the sponsor is an Australian permanent resident who is aged 36, and who is a specified relative to the applicant (they are brothers), and that the sponsor has sponsored each family unit member of the applicant included in the subclass 489 visa application. It is therefore satisfied that cl.489.225(3)(a), (b), (d) and (e) are met.

3. Accordingly, the only issue in dispute is whether the sponsor is usually resident in a designated area of Australia at the time of the Tribunal’s consideration, as required by cl.489.225(3)(c).

4. As discussed with the applicant and sponsor at hearing, there is no legal definition of ‘usually resident’ in the Act or Regulations.  However, the phrases "ordinarily resident" or "usually resident" have been interpreted to mean the place where a person is currently settled; they do not require an intention to live in a place permanently or indefinitely (see R v Barnet London Borough Council; Ex parte Shah [1983] 2 AC 309). The Court in Hafza v Director-General of Social Security (1985) 60 ALR 674 found that whether a person resides in Australia is a question of fact and depends on the person's continued connection to Australia. Hafza also suggests that physical absence from a place does not necessarily suggest that the person ceased to be resident and a person may simultaneously be resident in more than one place.

5. The leading case on assessing where a person is “usually resident” is the Full Federal Court's judgment in Scargill v MIMIA [2003] FCAFC 116 (French, von Doussa & Marshall JJ, 3 June 2003). The Court in that case approved the Tribunal’s reference to the test articulated in Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 by Williams J (with whom Rich ACJ and McTiernan J agreed):

   The place of usual residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives, even if this is in hotels or on a yacht or some other place of abode.

6. The Department’s guidelines for its decision makers on this issue are set out in its Procedures Advice Manual 3 (PAM3) and provide as follows:

   8.2      Must be usually resident in Australia

   In addition to meeting the immigration status requirement, a visa 886 sponsor must be ‘usually resident’ in Australia (886.222(3)(a)(iii)).

   In considering where the sponsor usually resides, case officers should examine the actual physical residence of the applicant - where they eat and sleep and have their usual abode, noting that an applicant may be resident in more than one country.

   Officers should look for evidence such as:

   •      the person’s physical presence in a country

   •      the length of that residence

   •      where they eat and sleep and have a settled home

   •      whether that residence is lawful or unlawful

   •      whether the person has retained or sought a right to re-enter a country in which they were formerly resident and

   •      the person’s intention whether to make a particular country their usual home or not.

   Residence should not be determined solely by deferring to a person’s historic ties and citizenship, nor by whether or not that person holds a permanent visa for that country. That means that if a sponsor has been living in Australia on a temporary visa but has only recently acquired permanent residence, they may still satisfy the requirement that they are usually resident in Australia.

1. As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily for ever.

2. The Tribunal is satisfied that the relevant written instrument for the purposes of cl.489.225(3)(c), IMMI 12/021, specifies that the entire state of Victoria is a designated area.

3. The Tribunal has considered the available evidence carefully, noting that the sponsor’s circumstances have changed since the delegate made her decision in mid-August 2015.  At that time, the sponsor had only recently returned to Australia in July 2015, following a significant absence between late 2012 and mid-2015, during which time he returned to China following the breakdown of his relationship with his first wife.  At that time, the sponsor’s wife and twins remained in China.

4. As at the time of the Tribunal’s decision, however, the Tribunal is satisfied that:

   ·the sponsor has continuously resided in Victoria since returning to Australia on 13 July 2015 and retains a subclass 856 permanent residence visa;

   ·the sponsor stayed initially with a friend for 2 months, then rented accommodation of his own from September 2015 onwards, initially in Collingwood and then Point Cook;

   ·the sponsor’s wife and children arrived in Australia in May 2016 and the family reside in rental accommodation with a friend in Point Cook and intend to buy a property in that suburb or a neighbouring one;

   ·the sponsor was employed as a mechanic by Toyota between September 2015 and January 2016, at which time he commenced work as a property/investment manager with H & T Realty Pty Ltd, where he continues to be employed on a full-time basis;

   ·the sponsor and his wife have Victorian driver’s licences, bank accounts,  Commonwealth tax file numbers, and a vehicle in Australia; and

   ·the sponsor and his wife regard Australia as their home for the foreseeable future.

5. The Tribunal considers that the concerns of the delegate were well-founded at the time that she assessed the issue of whether the sponsor was usually resident in a designated area of Australia.  However, as noted above, the situation has changed significantly since that time.  At the time of the Tribunal’s consideration of the issue, it considers that the balance of factors in the sponsor’s case indicate that he is usually resident in Victoria with his immediate family. 

6. The Tribunal acknowledges that this is a case in which the sponsor still retains relatively strong ties to his country of birth, China, in that his parents and parents in law continue to reside there, as do the applicants (the sponsor’s brother and his wife), although the applicant gave evidence that they intended to return to Australia once their visa status was resolved.  Moreover, it appears that the sponsor also retains an apartment in Shanghai.  The Tribunal accepts that the sponsor has wound down his own business in China and is essentially pursuing the same field of business activity with an Australian business.

7. While the presence of close family members and ownership of a property do represent significant ties to China, the Tribunal is mindful that the sponsor’s wife and children now reside with him in Australia as permanent residents, and that his evidence at hearing was that he intended to sell the apartment in Shanghai in due course and buy a house in Australia.  The Tribunal accepts that this is his intention, and considers that even if he intended to retain the Shanghai property as an investment, this would not outweigh the stronger ties he has now demonstrated to Australia.

8. The Tribunal accepts that the applicant appeared to be ambivalent about his usual residence when he returned to China in late 2012 but considers that since mid-2015, his actions demonstrate a commitment to regarding Australia as his usual residence.  It also gives weight to the fact that the sponsor remarried and began a family in China between early 2013 and mid 2015, as well as assisting with his family’s business during his father’s period of ill health, and that these events affected his ability to return to Australia for some time.

9. Having regard to all the available evidence and the totality of the sponsor’s circumstances, the Tribunal is satisfied that, at the time of its decision, the sponsor has established a physical presence in Australia and has an intention to make it his home.

10. The Tribunal is therefore satisfied that the sponsor is usually resident in Victoria. It is further satisfied that the applicant is sponsored by a person who is usually resident in a designated area of Australia and that cl.489.225(3)(c) is met.

11. Accordingly, the appropriate course of action is for the Tribunal to remit the matter to the Department for reconsideration of the remaining visa criteria for the applicant.  The Tribunal notes that the second named applicant applied on the basis of being a member of the family unit of the applicant, in which case her application will be determined by reference to the outcome of the applicant’s application on remittal to the Department for reconsideration.

DECISION

1. The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration, with the direction that the first named applicant meets the following criterion for a subclass 489 visa:

   · cl.489.225(3) of Schedule 2 to the Regulations.

Alison Mercer
Member