1604697 (Migration)

This matter concerned an appeal by visa applicants seeking Parent (Migrant) (Class AX) visas, Subclass 103, against decisions not to grant them these visas. The central dispute revolved around whether the sponsor, Mr. Jie Shi, an Australian citizen, met the criteria of being a "settled" Australian citizen as required by the relevant regulations. The applicants were Mr. Shi's parents, who were nationals of China.

The court was required to determine whether Mr. Shi was a "settled" Australian citizen at the time of the visa application and decision. This involved considering two key legal issues: firstly, whether Mr. Shi was "lawfully resident in Australia," and secondly, whether this residence had been for a "reasonable period." The court also had to consider the meaning of "settled" as defined by the Migration Regulations, which may differ from its ordinary meaning, and the interpretation of "lawfully resident," which generally encompasses both physical presence and the intention to treat a place as home.

The Tribunal reasoned that for Mr. Shi to be considered "settled," he needed to be lawfully resident in Australia for a reasonable period. While Mr. Shi was an Australian citizen, evidence indicated that he had lived mostly in China since 2010, regarding China as his home, and had his children attending school there. Although he possessed property in Australia, his prolonged absence and stated intention to treat China as his home meant he was not considered to have been lawfully resident in Australia for a reasonable period. The Tribunal applied the principles from *Naiker v MIMA* [2002] FCA 888, which established that factors beyond mere length of stay are relevant to determining a reasonable period of residence.

Consequently, the Tribunal found that the applicants did not satisfy the requirements of clause 103.221 of Schedule 2 to the Regulations, and the secondary applicant did not satisfy clause 103.321. The Tribunal affirmed the decisions not to grant the visa applicants their Parent (Migrant) (Class AX) visas.