Cui (Migration)

[2018] AATA 1188

Cui (Migration) [2018] AATA 1188 (5 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Longjie Cui

VISA APPLICANT:  Ms Yi Zhu

CASE NUMBER:  1704881

DIBP REFERENCE(S):  2008/061778

MEMBER:Susan Trotter

DATE:5 April 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for Parent (Migrant) (Class AX) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 103 (Parent) visa:

·cl.103.211 of Schedule 2 to the Regulations; and

·cl.103.221 of Schedule 2 to the Regulations.

Statement made on 5 April 2018 at 8:04am

CATCHWORDS

Migration – Parent (Migrant) (Class AX) visa – Subclass 103 – Whether the applicant’s son is a settled Australian citizen – Review applicant – Lawfully residing in Australia since 2001 – Studied and worked in Germany – Met and married his wife overseas – Review applicant and wife plan to settle down in Australia – Review applicant currently completing a Phd in Australia

LEGISLATION
Migration Act 1958 s 65
Migration Regulations 1994 r 1.03 Schedule 1 Item 1124 Schedule 2 cls 103.211, 103.221

CASES
Re Drake (No 2) (1979) 2 ALD 634
Vishnumolakala v Minister for Immigration [2006] FMCA 1209

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 and Border Protection to refuse to grant the visa applicant a Parent (Migrant) (Class AX) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 13 March 2008. She was sponsored by her son, the review applicant in these proceedings.

3. The delegate refused to grant the visa on 11 January 2017 on the basis that cl.103.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not satisfied because the visa applicant’s sponsor, the review applicant in these proceedings, was not a settled Australian citizen at the time of decision as required.

4. The review applicant lodged an application for review of the delegate’s decision with the Tribunal on 15 March 2017. A copy of the delegate’s decision was provided with the application.

5. The review applicant appeared before the Tribunal on 8 March 2018 to give evidence and present arguments. The Tribunal also heard evidence from the review applicant’s wife, Ms Harriet Tienstra.

6. The review applicant was represented in relation to the review by his registered migration agent.

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

   ISSUES

8. At the time the visa application was lodged, the Parent (Migrant) (Class AX) visa contained Subclass 103 (Parent): Item 1124 of Schedule 1 to the Regulations.

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.

11. The primary criteria include a requirement 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. The definition of ‘settled’ in r.1.03 of the Regulations requires that the person be lawfully resident in Australia for a reasonable period.

13. Clause 103.221 requires that at the time of decision, the visa applicant continues to satisfy the criterion in cl.103.211.

14. It follows that the issue in the present case is whether the review applicant was a settled Australian citizen as at the date of the visa application and continues to be a settled Australian citizen now at the time of decision.

    CONSIDERATION

15. The visa applicant is a 57 year old female Chinese citizen. Her visa application states that she is divorced with one child, the review applicant. The review applicant is a 29 year male Australian citizen. The Tribunal has sighted certified copies of birth certificates for both and a certified copy of the review applicant’s Australian citizenship certificate which were provided to the Department.

16. The review applicant’s evidence before the Tribunal, in a statutory declaration dated 18 January 2018 and at hearing, supported by documentary evidence where relevant, included as follows:

    (a)  He first arrived in Australia in 2001 and was granted Australian citizenship in 2004.

    (b)  He completed his schooling in Australia and then completed a Bachelor Music degree at the Queensland Conservatorium of Music at Griffith University in June 2010. He was then accepted into a two-year Master of Music degree at the University of Music in Karlsruhe in Germany. These studies led to a two-year student visa followed by a five-year work visa in Germany.

    (c)  From June until mid-October 2013, he returned to Australia in order to play a number of recital engagements as well as to participate in a piano competition. He then returned to Germany in order to undertake further opportunities. In December 2013, he commenced work with Yamaha Music Europe GmbH in Hamburg Germany which resulted in him making a decision to remain in Germany for the next four years to take up what a very good opportunity.

    (d)  He met his wife, a citizenship of the Netherlands, during 2013. She relocated from the Netherlands to Germany in May 2015 to be with him and they married in January 2017.

    (e)  After marrying, he and his wife began discussing their plans for the future and decided to return to Australia to live, which was consistent with his intentions to return to live in Australia. One of the considerations to which they had to regard was that he was the only child of his father, who lives in Brisbane, whereas his wife has two other siblings remaining in the Netherlands with her parents.

    (f)    In mid-2017, he commenced exploring opportunities to return to Australia and he contacted Prof. Stephen Emmerson at Griffith University Queensland Conservatorium seeking a PhD placement at the University.

    (g)  On 8 December 2017, he received an offer for a PhD placement at the university together with advice of receipt of an Australian Government RTP Stipend of $27,082 per annum for three to four years.

    (h)  He arrived back in Australia on 16 February 2018 and commenced his PhD studies on 26 February 2018 and will be remaining in Australia on a continuous basis for at least the next four years for these studies, and it is his and his wife’s intention to remain and start a family in Australia together. In addition to his PhD studies he is employed at the Inna Music School in Kenmore (estimated weekly income $1,000 per week). He and his wife are currently living with his father and his father’s partner but have commenced searching for a home to purchase in the inner suburbs of Brisbane. His wife is studying statistical analysis online at the Swinburne Institute in Melbourne and is looking for work in Brisbane. Once she gets a job, they will then be purchasing a property.

    (i)    Throughout his absence from Australia, he has retained personal belongings at his father’s property and maintained two bank accounts in Australia in which he currently has approximately $14,000 in savings.

    (j)    He is currently in the process of applying for a partner visa for his wife.

    (k)   He and his wife have recently purchased a car in Australia, taken out gym membership and a telephone plan and have transferred all of their monies to Australia.

17. Ms Tienstra’s evidence at hearing included as follows:

    (a)   She is looking for a project management job in Brisbane. Her previous studies have been in international development studies. When she completes her further studies at Swinburne Institute, she hopes to move more towards data analysis.

    (b)   She has known the review applicant for just over four years and most recently has been living with him in Germany prior to arriving in Australia, since which time they have been living with the review applicant’s father and his partner.

    (c)   Since the commencement of their relationship, they have been talking about returning to Australia to settle down. They made a final decision to settle in Australia in December 2016/ January 2017. One of the factors that they took into account was that the review applicant is an only child and they wanted to be close to his father, whereas she has two other siblings remaining with her parents in the Netherlands. Further, she has qualifications in English and they feel that she will settle better, and gain employment more easily, in Australia than the review applicant would in the Netherlands. They also are planning to have children together and have decided that Australia will be the best place for them to raise children.

18. On the basis of the review applicant’s certified and translated birth certificate and the certified copy of his passport provided to the Department, the Tribunal finds that the visa applicant is the parent of the review applicant, who is the sponsor for the visa application and an Australian citizen.

19. The evidence outlined above about the review applicant’s residence in Australia for several years before the date of the visa application on 13 March 2008 indicates that the review applicant had been, at the time of the visa application in 2008, lawfully residing in Australia since 2001. The Tribunal is therefore satisfied that at the time of the visa application, the review applicant was a settled Australian citizen within the meaning of r.1.03. The Tribunal finds that, at the time of the visa application, the visa applicant was the parent of a person who was a settled Australian citizen and therefore cl.103.211 is satisfied.

20. Since the date of the visa application in 2008, the review applicant’s life has continued with him completing studies in Australia in 2010 and taking up the understandable opportunities presented to him to study and work overseas. He then met his wife and they married in early 2017 with their joint evidence being that since the beginning of their relationship, plans were made for them to eventually return to and settle in Australia together.

21. The definition of ‘settled’ in the Regulations requires that the person be lawfully resident in Australia for a reasonable period. What constitutes “reasonable” is not defined in the Regulations.

22. Departmental policy contained within in its Procedures Advice Manual (PAM3) provides guidance on the interpretation of "reasonable" in this context. As regards the application of such policy guidelines, the Tribunal notes that although it may be guided by policy, it is not bound to follow it: see Brennan, J in Re Drake (No 2) (1979) 2 ALD 634. In Vishnumolakala v Minister for Immigration [2006] FMCA 1209 Smith FM held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and therefore are incapable of being elevated into legally necessary or relevant considerations. His Honour considered that there is no real analogy between PAM3 and the type of policy discussed by Brennan J in Re Drake (No 2)(1979) 2 ALD 634. In the Tribunal’s view what constitutes “reasonable” has to be considered in the context of all of a person’s particular circumstances.

23. The review applicant has at the time of this decision been back in Australia for nearly two months, less than the two years suggested as a reasonable period in the Department’s Policy Guide (PAM3). PAM3 also indicates that a shorter period of residence of at least three months can be considered to be a reasonable period in particular circumstances. These include situations where an Australian citizen has resided overseas for a lengthy period, has returned and wishes to sponsor family members but may be precluded from doing so due to the two year policy requirement.

24. There are many aspects of the review applicant’s particular circumstances which leads the Tribunal to the view that a shorter period of residence than two years, or the suggested three months, can properly be regarded as reasonable in this case. These include that:

    (a)  It is clear that the review applicant was a settled Australian citizen before his departure from Australia in 2010 and his absences from Australia has been for the very understandable reasons of furthering his studies and employment experience prior to returning to Australia, with the period of absence understandably likely also extended because of meeting and marrying his wife.

    (b)  There is significant and consistent evidence that the review applicant and his wife have re-established (the review applicant) and established (his wife) themselves in Australia. In particular, the review applicant has been accepted into a three to four year PhD placement in Australia with an Australian Government stipend of $27,082 per annum for three to four years. Further, the review applicant has also been employed in gainful employment since his return.

    (c)  It was the consistent, but separately given, evidence of the review applicant and his wife that they have reached a stage in their lives that they wish to settle down, including with plans for a family, and that since the beginning of their relationship their discussions in this regard have centred around settling down in Australia.

25. In particular, the Tribunal considers the review applicant’s PhD studies, and the associated stipend, are very strong indicators of the review applicant’s intentions to remain in Australia for at least the next three to four years.

26. Having regard to all of these matters, the Tribunal is satisfied that notwithstanding the review applicant’s extended absences outside Australia between 2010 and February 2018, that the review applicant, at the time of decision, has been lawfully resident in Australia for a reasonable period, taking into account the review applicant’s particular circumstances. It follows that the Tribunal is satisfied that as the date of decision, the review applicant is a settled Australian citizen and finds accordingly.

27. The Tribunal is therefore satisfied that at the time of decision the visa applicant continues to satisfy the criterion in cl.103.211 and therefore satisfies cl.103.221.

    DECISION

28. The Tribunal remits the application for Parent (Migrant) (Class AX) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 103 (Parent) visa:

    ·cl.103.211 of Schedule 2 to the Regulations.

    ·cl.103.221 of Schedule 2 to the Regulations.

    Susan Trotter
    Member