1604697 (Migration)

[2016] AATA 4799

1604697 (Migration) [2016] AATA 4799 (6 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jie Shi

VISA APPLICANTS:  Mr Youjin Shi
Mrs Xiuhua He

CASE NUMBER:  1604697

DIBP REFERENCE(S):  OSF2007/069628

MEMBER:Helena Claringbold

DATE:6 December 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Parent (Migrant) (Class AX) visas.

Statement made on 06 December 2016 at 7:16am

CATCHWORDS

Migration – Parent (Migrant)(Class AX) visa – Subclass 103 – Sponsor no longer a settled Australian citizen – Not lawfully resident in Australia for a reasonable period – Has property in Australia - Lived mostly in China from 2010 and regarded China as home

LEGISLATION

Migration Act 1958, Schedule 2 of the Regulations, cl.103.211, cl.103.221, r.1.03

CASES

Naiker v MIMA [2002] FCA 888

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 5 June 2007, Mr Youjin Shi, the primary applicant and Mrs Xiuhua He, the secondary applicant applied for Parent (Migrant) (Class AX) visas under s.65 of the Migration Act 1958 (the Act).  The application was made on the basis of their relationship with their son, Mr Jie Shi, the sponsor and review applicant.

2. On 15 March 2016, a delegate of the Minister for Immigration to refuse to grant the visas. The delegate was not satisfied that the applicants satisfied cl.103.211.  This is a review of the delegate’s decision.

3. Mr Shi appeared before the Tribunal on 28 November 2016 to give evidence and present arguments. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Department’s file OSF2007/06928, folios numbered 1-97, and the Tribunal file 1604697, folios numbered       1- 32 and the oral evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether the applicants were sponsored by a settled Australian citizen or a settled Australian permanent resident or a settled eligible New Zealand citizen as required by cl.103.211.

   BACKGROUND

7. Mr Shi was born in 1977 in China. He is an Australian citizen.  He is married and the parties have three children.

8. Mr Youjin Shi was born in 1951 and Mrs XIiuhua was born in 1954.  They are nationals of China. As well as the sponsor, they have another son who was born in 1976.  He is married and resides in Hong Kong, China.

9. The Parent (Migrant) (Class AX) visa is a permanent visa for parents of settled Australian citizens, Australian permanent residents and eligible New Zealand citizens who satisfy the ‘balance of family’ test.

10. The criteria for a Subclass 103 visa are set out in Part 103 of Schedule 2 to the Regulations. The primary criteria must be satisfied by at least one member of the family unit who is an applicant for the visa. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

    Is the sponsor a settled Australian citizen?

11. The primary criteria require that at the time of application, the visa applicant be a ‘parent’ of a settled Australian citizen or permanent resident, or a settled eligible New Zealand citizen: cl.103.211.

12. At the time of decision cl.103.221 needs to be satisfied and provides that: the applicant continues to satisfy the criteria in cl. 103.211.

    Meaning of ‘settled’

13. When considering the definition of ‘settled’ in r.1.03, there are two legal issues arising for consideration: whether the individual is ‘lawfully resident in Australia’ and whether this has been ‘for a reasonable period’.

14. In Naiker v MIMA [2002] FCA 888 the Federal Court considered the meaning of the term "settled" in the context of a special need relative visa. Hely J held that factors other than simply the length of stay may be relevant to determining the question of whether a person has been resident in Australia for a reasonable time. On the term "settled" the Court held the view that it is given a particular meaning by the Regulations, whether or not it accords with its ordinary meaning. Accordingly, the Migration Review Tribunal was correct in posing the question in terms of whether the residence in Australia was for a reasonable period. Residence, however, is broader than simply the mere length of stay in Australia. The term ‘reasonable period’ is also undefined in the legislation.

15. Resident’ is also not defined in the legislation lawfully resident generally speaking, the term has been interpreted as incorporating two elements, namely: 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.

    Prior to the hearing

16. On 5 April 2016, Mr Jie Shi provided information including, but not limited to, the following: after he was granted citizenship he departed Australia with his wife and children, because his mother was ill in China.  He has three children who attend school in China.  When they finish primary school in China, they will return to Australia to continue their education.  On the other hand, the queue for the “unpayment parent visa” is lengthy, possibly up to ten years.  The education of the children cannot wait for that length of time. 

17. In addition he stated that he returns to Australia for short stays because his family and parents are living in China.  However he would like to settle in Australia.  In July 2015, he purchased a property in Granville.  It is intended that his family and parents live at that property.  They also purchased a property in Parramatta.  It is also possible that his parents will live at this property because it is close to amenities.  His parents love Australia and will be able to stay closer to their son in Australia.

    The Tribunal hearing

18. The Tribunal told Mr Shi that certain information in the Department file OSF2007/069628 is the subject of a 375A certificate.  This certificate prevents the Tribunal disclosing any document, matter or information referred to in the certificate as it would be contrary to the public interest.  The Tribunal has considered the information that is the subject of the certificate and is of the view that as the information relates to Department procedure, it is not relevant to this review and the Tribunal places no weight on the information under the certificate.

19. In addition the Tribunal put information to Mr Shi under the relevant provision.  The information is as follows:

    ·Mr Shi was granted Australian citizenship in July 2008.

    ·His last departure from Australia was on 18 December 2015 and there is no evidence before the Tribunal that he has returned to Australia since that date. 

    ·From 5 January 2010 to 18 December 2015, Mr Shi spent a total of seventy one days in Australia.

20. Mr Shi responded and provided information including, but not limited to, the following: in 2004 he entered Australia and obtained Australian citizenship in August 2008.  At that time he had lived in Australia for four years.  During this time he was separated from his parents.

21. In 2005, his daughter was born and in 2003, his son was born. In 2005 they were sent to live with his parents in China. His second daughter was born in 2007 and she was sent to live with his parents in the same year.  His wife also went to China in 2005 and has lived there since that time.  When he returned to China he wanted his family to return to live with him in Australia.  However, his parents and his children didn’t agree and this resulted with him living in China.  Since 2010, when absent from Australia he lived with his wife, their children and his parents in China.  This is culturally and traditionally acceptable in China.

22. In addition, he is involved in helping his parents in their business of running a shopping mall.  He has purchased property in Australia and if his parents are granted the visas the family intends to live in Australia.

    FINDINGS

23. On the facts of this case the Tribunal is satisfied that Mr Shi is no longer a settled Australian citizen.  This is notwithstanding the fact that he has property in Australia.

24. Mr Jie Shi maintains Australian citizenship and stated that his long-term intention is to return to Australia.  He said that his parents and his children wanted him to stay in China; that his children attend school in China and he assists his parents run a shopping mall. Even if the Tribunal accepted this, the fact remains that at the time of this decision Mr Shi had not lived in Australia since December 2015. In the five years prior to this date, he was present in Australia for a total of seventy one days.  Other than these days in Australia, Mr Shi’s physical presence has been in China, where he lived with his wife, their children and his parents and he has treated that place as his home since 2010.  The Tribunal is not satisfied that Mr Shi has been lawfully resident in Australia for a reasonable period.  It follows, that the Tribunal is unable to find that at the time of decision Mr Shi continues to be a settled Australian citizen.

25. This means that the primary applicant does not satisfy cl.103.221.

26. As the primary applicant does not satisfy cl.103.221 of Schedule 2 to the Regulations. It follows, that the secondary applicant, does not satisfy cl.103.321.

27. For the above reasons, the Tribunal finds that the primary visa applicant do not satisfy the requirements of cl.103.221 of Schedule 2 to the Regulations and the secondary applicant does not satisfy cl.103.321 of Schedule 2 to the Regulations.

    DECISION

28. The Tribunal affirms the decisions not to grant the visa applicants Parent (Migrant) (Class AX) visas.

    Helena Claringbold
    Member