Ali (Migration)

[2017] AATA 219

Ali (Migration) [2017] AATA 219 (7 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Fatima Ali

VISA APPLICANT:  Ms Masooma Ramzanali

CASE NUMBER:  1618211

DIBP REFERENCE(S):  BCC2016/3079846

MEMBER:Lisa Lo Piccolo

DATE:7 February 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.232 of Schedule 2 to the Regulations.

Statement made on 07 February 2017 at 5:06pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – cl 600.232 – Sponsored by a settled Australian permanent resident – Length of Stay – Lawfully resident in Australia for a reasonable period – Applicant married to an Australian permanent resident – Purchased home and business

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2 cl 600.232, r 1.03

CASES

Naiker v MIMA [2002] FCA 888

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 18 October 2016 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 15 September 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams.   In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

3. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because she did not satisfy cl.600.232, which required evidence that the visa applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident who is at least 18 and who is a relative of the applicant.

4. The review applicant appeared before the Tribunal on 6 February 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband.  The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

5. 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 this case is whether the visa applicant meets cl.600.232 of the Regulations.  The relevant part of cl. 600.232 requires that the visa applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 and a relative of the applicant. 

2. A “relative” for this purpose includes a child of the person (r.1.03 – definition of “relative” and “close relative”).  The visa applicant is the review applicant’s mother.  She is a relative for the purposes of r.1.03. 

3. R.1.03 defines ‘settled’ as “lawfully resident in Australia for a reasonable period”.  Neither the terms ‘reasonable period’ nor ‘resident’ are undefined in the legislation. Lawfully resident 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.

4. 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. He said that "settled" is given a particular meaning by the Regulations, whether or not it accords with its ordinary meaning, such that the Migration Review Tribunal was correct in posing the question in terms of whether the residence in Australia was for a reasonable period.

5. The Department’s PAM 3 ‘Generic Guidelines H - Visitor visas - Visa application and related procedures’, contain the following:

   The sponsor (if an individual, that is, a natural person) must be a settled Australian citizen or permanent resident. Settled is defined in regulation 1.03 as ‘lawfully resident in Australia for a reasonable period’.

   Under policy, a reasonable period is considered to be 2 years. Officers should, however, be flexible in assessing the settled requirement. Periods of temporary residence, as well as permanent residence, can be counted towards making up the 2 year requirement.

   For this requirement to be met, the sponsor must be lawfully resident at the time the application is made. This does not necessarily mean that the sponsor must be in Australia at this time because a temporary absence would not negate the fact that a person is lawfully resident. However, if the sponsor has moved permanently overseas, they would not be considered to be lawfully resident in Australia even if the absence at the time the application is made has been for a short period only.

   The requirement may also be met if a person has spent some time in Australia on a temporary visa and then been granted a permanent visa. In such a case, the temporary stay may contribute to satisfying the ‘settled’ criterion if the s65 delegate concludes that the person became lawfully resident during the period of temporary stay and the lawful residence has been maintained. This means that time spent as a student, for example, before being granted a permanent visa may, depending on the circumstances, contribute to satisfying the ‘settled’ criterion.

6. In this case the review applicant is the visa applicant’s sponsor.  She is over 18, is the visa applicant’s daughter, and has been living in Australia for over three and a half years.  She has been lawfully present in Australia for all this time on a subclass 300 visa, and a subclass 820 visa before she was granted a permanent subclass 801 visa on 27 October 2016.  During this time, she has only departed Australia on three occasions for short trips to visit her family abroad.

7. She is married to an Australian permanent resident who is applying for Australian citizenship.  They have purchased a home here.  Her husband operates a business in Australia in the construction industry and she worked full time until late 2016 when she was in the penultimate trimester of her pregnancy.  She gave birth to her first baby in Australia on 28 January 2017.  The Tribunal considers this information demonstrates the review applicant has been lawfully resident in Australia for a reasonable period and that she is settled in Australia.

8. The Tribunal is satisfied that the review applicant has been lawfully resident in Australia for a reasonable period. The Tribunal is satisfied that he is a settled Australian permanent resident.

9. For the above reasons the Tribunal is satisfied that the requirements of cl.600.232 are met.

DECISION

1. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

   ·cl.600.232 of Schedule 2 to the Regulations.

Lisa Lo Piccolo

Member