Fahmy (Migration)

[2018] AATA 1982

Fahmy (Migration) [2018] AATA 1982 (5 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mahmoud Fahmy

VISA APPLICANT:  Dr Mona Salama

CASE NUMBER:  1619527

DIBP REFERENCE(S):  2008/061464

MEMBER:David Barker

DATE:5 June 2018

PLACE OF DECISION:  Sydney

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 05 June 2018 at 8:15am

CATCHWORDS
Migration – Parent (Migrant) (Class AX) visa – Subclass 103 (Parent) visa – Whether the review applicant is a well settled Australian citizen – Relocated to Qatar on a temporary basis for work  – Significant financial and professional links to Australia – Re-established a household in Australia – Seeking employment in Australia – Cultural responsibility to look after his mother – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03 Schedule 1 Item 1124 Schedule 2 cls 103.211, 103.212, 103.221

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 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 19 February 2008. The delegate refused to grant the visa on 22 September 2016 on the basis that cl.103.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not satisfied because they were not satisfied the sponsor was, at the time of delegate’s decision, a settled Australian citizen.

3. The review applicant applied to the Tribunal for review of the delegate’s decision.

4. The review applicant was initially invited to appear before the Tribunal on 17 January 2018 but failed to do so.  The Tribunal subsequently exercised its authority to dismiss the application, but upon receiving an explanation from the review applicant for his failure to attend the hearing, consented to a request from the review application that the review application be reinstated.

5. The review applicant appeared before the Tribunal on 26 April 2018 to give evidence and present arguments.  The Tribunal also received oral evidence from the visa applicant and the spouse and cousin of the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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.

   Relevant law

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 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. The Regulations also require that the visa applicant be sponsored at the time of application by, if the child has turned 18, the child or the child’s cohabiting spouse (if that person has turned 18) or, if the child has not turned 18, by either the child’s cohabiting spouse (if the spouse has turned 18) or a relative or guardian of the child or the child’s spouse who has turned 18 or a community organisation: cl.103.212.

13. At the time of decision, the primary criteria to be satisfied are that:

    ·the visa applicant continues to satisfy the criterion in cl.103.211: cl.103.221

    ·a sponsorship of the kind mentioned in cl.103.212 has been approved by the Minister and is in force (whether or not the sponsor was the sponsor at time of application): cl.103.222

    ·an assurance of support has been accepted by the Department of Family and Community Services: cl.103.226

    ·the visa applicant and family members satisfy certain public interest criteria: cl.103.224, 103.225, 103.227 and 103.228

    ·if the applicant has previously made a valid application for another parent visa, that application is not ‘outstanding’: cl.103.229

    ·in the case of applications made on or after 1 July 2005, the visa applicant satisfies certain passport requirements: cl.103.230.

14. Part 103 of Schedule 2 also contains secondary criteria that must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.

15. The issue in the present case is whether the visa applicant was, at the time of application and continues at the time of decision, to be a ‘parent’ of a settled Australian citizen or permanent resident, or a settled eligible New Zealand citizen.

    Background

16. The visa applicant is a national of Egypt and is 67 years old.  She is a retired medical practitioner and a widow.  She has two children, a daughter who resides in Germany and the review applicant.

17. The review applicant was born in Egypt and is 41 years old.  He came to Australia in September 2005 and was granted Australian citizenship in January 2008.  He and his wife have three children, who were all born in Australia and hold Australian citizenship.

18. The decision record of the delegate from the Department, a copy of which was provided with the review application, noted the visa applicant lodged her application for the Parent visa in February 2008, but that Departmental records indicated that her sponsor, the review applicant, had departed from Australia in August 2013 and had not, at the time of the delegate’s decision in September 2016, returned to Australia. The delegate noted the review applicant had advised the Department that he had moved to Qatar ‘as an ex-pat and that his family resides there with him’. The delegate noted that legislation required that the sponsor of the visa application, namely the review applicant, be at the time of the decision, lawfully resident in Australia for a reasonable period and that on the basis of the information that was available to them, they were not satisfied that the review applicant was a settled Australian citizen.

19. At the time he applied to the Tribunal for a review of the Department’s decision to refuse the visa application, the review applicant provided a written submission, which provided the following background information in response to the delegate’s concerns:

    • Soon after being granted the permanent residence visa, I came to Australia with my wife Mrs. [name supplied] in September 2005 to make the landing to visit our new intended home.
    • In November 2005 I moved permanently by myself first to settle and my wife joined

    me within three months in February 2006 after I secured a permanent contract job with my first employer in Australia as a structural engineer.
    fulltime job as an engineer and for the following eight years until I moved temporarily to Qatar (which I will explain later)

    • Within one month from moving to Australia permanently I have maintained a
    • Since we moved permanently to Australia and up to date, myself and my wife established our life in our new homeland, grew roots and ties to Australia and have been productive and adding value citizens of Australia (including the period we are temporarily living overseas) and I can objectively demonstrate this claim as follows:

    oI proud myself that up until June 2013 (when I temporarily moved to Qatar) my tax contributions have been continually increasing as my salary went from 45,000 AUD to 122,000 AUD

    oI joined Engineers Australia as a member in 2006 to maintain and develop

    my professional career in Australia

    oI attained the Chartered Professional Engineer (CPEng) status and was added

    to the National Professional Engineers Register (NPER) in June 2007

    oI moved to my second employer AECOM in July 2007 where I participated in signatory infrastructure projects in NSW for the following period until June

    2013

    oMy wife accumulated approximately three years of fulltime job which was

    postponed when we had our first baby and then terminated after having the
    second child.

    oWe had three children all born in Australia:

    •Mohammad in June 2007

    •Karma in March 2010

    •Jumanah in March 2012

    oBoth myself and my wife applied to become Australian citizens as soon as we were eligible to apply (24 month after moving permanently) and I become an Australian citizen on Australia Day of 2008 then my wife few months later.

    oSoon after being an Australian citizen, I've applied for the parent visa for my

    mother as I have no plans to go back and reside in Egypt and I'm the only son for my widowed mother and I got moral obligation for taking care of her especially when she gets older.

    oWe established the [name supplied] Trust (with a non-related friend, Mr. [name supplied] who migrated to Australia more than 32 years ago, from South Africa) which invested in a residential property at Beaumont Hills, NSW. The trust raised 615,000 AUD in 2012 to purchase the property and we contributed by our personal savings plus investing my superannuation

    oI have undertaken volunteer work with the community organization, Hills District Muslim Society, I became the treasurer in 2011 then the vice president in 2012.

    All the above demonstrates that I have worked hard over eight years, since moving to Australia, and over five years after becoming Australian Citizen to establish myself: professionally, financially and socially.

    Moreover, after moving to Qatar in 2013 (which I below explain in details the reason for this move) I continued to maintain my ties with Australia and the following demonstrates this claim:

    oMyself and my wife grew our shares in the [name supplied] trust and purchased additional 60 units after moving to Qatar in my wife's name

    oI maintained my superannuation through a Self Managed Super Fund (SMSF) which invested in the [name supplied] Trust. (all the records of the Trust & SMSF are available upon request)

    oI maintained my membership with Engineers Australia and soon after moving to Qatar I contacted the Engineers Australia National Office to put me in contact with other Australian engineers in Qatar.

    oIn 2014 I was one of the founders on an Interest Group of Engineers Australia in Qatar which then grew to be a Middle East Chapter of Engineers Australia in Qatar and I became the first President of the Chapter in Qatar in 2015.

    oI was elected to the Engineers Australia Congress (35 members representing 100,000 members of EA) for 2016 & 2017 to represent overseas members

    oI became a Fellow member of Engineers Australia in August 2016 (attached

    letter from EA CEO acknowledging my contribution to the organization and my commitment to my homeland)

    oI maintained a social relation with Australians living in Qatar and demonstrated leadership among the Australian community in Qatar by playing a vital role in getting the Qatar State Ministry of Municipality and Environment recognizing the Engineers Australia chartered status (attached email from the Australian Ambassador to Qatar acknowledging my efforts)

    oI'm currently visiting Australia with my wife (From 11 November to 25 November 2016) to:

    •attend the Engineers Australia annual congress and engineering conference

    •Visit family and friends in Australia

    •Meet with my SMSF accountant to discuss the best options to invest the current funds

    I believe that the above shows my unbroken commitment to my homeland and that even though I have been working overseas for a period over two years, yet I'm keen to maintain and even expand my ties with Australia. The circumstances which made me consider moving to work in Qatar:

    oBy the end of 2012 there was a slowdown in the economy and my employer
    (AECOM) did three rounds of staff cuts over a period of six months which made me feel my job is threatened. I have then had an opportunity to move with AECOM Middle East in Qatar.

    oMore importantly, during this period my mother application processing was
    moving slowly as the parent visa (Class AX / Subclass 103) are limited and there was a long queue of an estimated waiting period up to 10 years. And around this period the political and socioeconomic climate in Egypt (after the 2011 uprising) was volatile and there has been increasing number of theft and assault incidents. I had concerns for the safety of my mother, especially when I knew that she had an assault incident when someone spitted at her.

    oMoving to Qatar meant that I can be closer to my mother until her application is assessed plus it was brought to my knowledge that in Qatar I can apply for temporary residency for her to live with me when I work in Qatar.

    oAccordingly, I accepted the offer to work in Qatar and moved my family to Qatar in August 2013 then applied for a residency for my mother which was accepted on the basis of her being a widowed mother and lam her only son. (Attached a copy of my mother residency permit in Qatar)

    For all the above listed reasons, I appeal to the Administrative Appeal Tribunal to review the subject decision of Department of Immigration and to consider:

    ØI am the only son of my widowed mother, whom her country of permanent residence is Egypt which is classified for extended periods by the Department of Immigration as a high threat and Australian are advised to reconsider their travel to Egypt.

    ØI am settled Australian Citizen as I have lived in Australia over eight years since becoming permanent resident and over five years after becoming citizen.

    ØI'm maintaining strong ties and links with my homeland even while working overseas.

    ØMajor reason for me working overseas to be able to have my mother living with me.

    ØThe parent visa process is a lengthy process which has took over eight years since I first applied and it is not fair that I've to put up with the stress of being worried for my mother safety and well fair until her case is decided and to be deprived from seeking career opportunities which will help me in my long-term plans to establish a more prosperous life in Australia.

    ØThe country I moved to (Qatar), is a country which expats form approx. 85% of its population and is only a temporary place to live at for expats.

    ØI intended to move back to Australia when my mother is granted the parent visa and she will only land and move in Australia with me.

    I finally wish to bring to the attention of the respected Tribunal that as migrants (myself and my wife) we had to rely, for extended periods, on a single income because we didn't have the privilege to have parents around us to support us when we had our children and now our citizenship which demonstrated a robust commitment towards it, is assessed as non-settled because we exercised our right to move around the world and take an appealing opportunity to work overseas for few years, something which thousands of Australians (born in Australia and have their parent in Australia) do around the world and they return home to their parents.

    The hearing

    The review applicant’s evidence

20. With regard to the current circumstances of the visa applicant, the review applicant told the Tribunal his mother is physically well and spends around half of her time in Egypt, so as to maintain contact with her elderly mother and the rest of the time she is either In Qatar, staying with the review applicant, or visiting the review applicant’s sister in Germany.  He said she has not spent significant periods with his sister in recent times, because his sister is suffering from multiple sclerosis and has her own family and can’t accommodate their mother, the visa applicant, easily for more than relatively brief periods of time.

21. The review applicant said his father died when he was 11 years old and that from that time they were looked after by their mother.  He said it is now his duty to look after his mother and that the plan is that she will stay with him all of the time from when his grandmother, who is 90 years old and in aged care, no longer needs his mother’s support. 

22. The review applicant told the Tribunal that if his mother’s visa application is not approved he will have to depart from Australia to be with her.  He said this would cause great hardship and disruption to his family, as he would need to be separated from his wife and three children.  He said his children are Australian citizens and do not have dual citizenship with any other country.  He said when he and his wife emigrated to Australia in 2005 they had a clear intention to settle in this country and raise a family here. He said he has only returned to Egypt for brief visits since he came to Australia in 2005 and since that time has spent no more than 90 days in total in Egypt.

23. The review applicant gave evidence he and his wife applied for Australian citizenship as soon as they were entitled to. He said he sponsored his mother for the Parent visa soon after he was granted Australian citizenship in 2008. He said at the time his mother lodged the application for the visa he was aware she would take quite a few years before the application was processed by the Australian immigration authorities.

24. The review applicant said when there was a downturn in the Australian economy in 2013, he had the opportunity to work for a period of time in a branch of his employers’ business which was operating in Qatar. He said he took up this opportunity and in doing so was influenced by the relative proximity this would provide him to his mother and also because of the opportunity this provided him to improve his family’s financial circumstances, due to the high salaries paid to expatriate engineers in Qatar.  He said he has always resided in furnished rental accommodation in Qatar, as his stay there was only every temporary.

25. The review applicant told the Tribunal he has held a work visa whilst he has been working in Qatar, which has always had a condition that he is required to depart from Qatar when his contract ceased. He said he is currently working for a semi government business entity in Qatar on a contract that requires the provision of three months’ notice, by himself or his employer, of the intended termination of the employment contract. 

26. The review applicant told the Tribunal his wife and two daughters have resumed usual residence in Australia and that his daughters have enrolled to commence Year Three and Year Six at Castle Hill Primary School. He said he has yet to give notice to his employer in Qatar and that he will return there with his son on 28 April 2018.  He said his son will complete his primary school education in June 2018 and then they will return to Australia to be reunited with his wife and younger children on or around 29 June 2018.  He said the family and he always intended to resume their usual residence in Australia at a time that would allow their son to start his secondary school education at an Australian Highschool.

27. The review applicant said he is currently actively seeking work as a civil engineer in Australia. The review applicant told the Tribunal he and his wife leased rental accommodation for their family in Castle Hill, NSW in April 2018.

1. As to why he contends he should be regarded as a settled Australian citizen, the review applicant made the following specific points:

   ·when he and his wife went to Mecca for a holy pilgrimage in 2015 they were are of some risks involved in this trip and so arranged for his cousin, who is an Australian citizen, to be the children’s guardian and look after them in Australia in the event something happened to the review applicant and his wife;

   ·his three children are Australian citizens and only hold Australian passports;

   ·he and his wife have maintained superannuation accounts and bank accounts in Australia throughout the period they were overseas;

   ·he has always maintained private health insurance in Australia for himself and the family;

   ·he only holds an Australian passport;

   ·being settled and resident for a reasonable period of time should be viewed over a longer time frame, from 2005, when he emigrated to Australia and not purely from when he left Australia in 2013 for a temporary period of employment offshore;

   ·he was at no stage legally regarded as ‘settled’ in Qatar and as he is not stateless, he must be ‘settled’ somewhere else and that place is Australia.

   The visa applicant’s evidence

2. The visa applicant tod the Tribunal she is currently living in Egypt, by herself in a small house. She said she usually visited her son, the review applicant, in Australia twice a year for around three months at a time and that in recent years she has stayed with him and his family in Qatar on a similar basis. The visa applicant told the Tribunal her son intends to live permanently in Australia, notwithstanding his recent period of employment in Qatar.  She said all three of his children were born in Australia and that the family want to stay there, as it is a good place to raise the children. The visa applicant said she will continue to visit her daughter in Germany, but that she wants to live with her son, her daughter in law and the grandchildren.

   The evidence of the review applicant’s wife

3. The review applicant’s wife gave evidence the family returned to Australia in April and found a suitable home for the family to rent in Castle Hill, NSW.  She said the two youngest children have been enrolled in a local school and that her eldest child will return to Australia permanently, with the review applicant, after he has completed his current school year in Qatar.  She said the family only moved to Qatar temporarily for her husband’s work and that it is now time for the children to settle back in Australia. She said this is particularly important for her son, who will soon make the transition to secondary school and commence Year Seven at an Australian school.

4. The review applicant’s wife told the Tribunal her husband is devoted to his mother and that as he is the only son, it his responsibility to look after his mother.  She said this is a very big issue for the family, as in the circumstance where her mother-in-law was refused a visa and then became increasingly frail, or ill in Egypt, her husband would have to move back there to look after her.  The review applicant’s wife said this would result in great distress and hardship for her family as they would be a forced period of separation, as she and the children would remain in Australia, where they are all citizens.

   The evidence of the review applicant’s cousin

5. The review applicant’s cousin gave evidence he is very close to the review applicant and they have over a period of years discussed their hopes and plans for their future lives together.  He said the review applicant went overseas for a few years to work and earn some money.  At the time he was unsure how long it would take for his mother’s visa to be processed.  He said that the review applicant always intended to return to Australia after his overseas work contract finished.  He said it is commonplace for people with professional qualifications to take contracts in countries like Qatar for short term work and financial gain.

   CLAIMS AND EVIDENCE

6. The Tribunal has reviewed the information contained in the Department’s and the Tribunal’s files.  This includes a photograph supplied most recently, on 5 May 2018, which shows the review applicant’s younger children attending their first day at Castle Hill Public School.

7. The review applicant and all of the witnesses in this matter gave their oral evidence during the hearing in a calm and straight forward manner, without unnecessary embellishment.    The Tribunal is satisfied that considerable weight can be accorded to the evidence of the review applicant, his mother, wife and cousin.  

   FINDINGS AND REASONS

8. The visa application was made on the basis that the visa applicant is a parent of the review applicant, who is an Australian citizen (‘the child’). The evidence before the Tribunal is that the sponsor, the review applicant, is the child. A central consideration in this matter is whether the review applicant was a settled Australian citizen at the time of the visa application and now at the time of this decision.    

9. Clause 103.211 requires that at the time of application the visa applicant be the parent of a settled Australian citizen, Australian permanent resident, or eligible New Zealand citizen. The definition of ‘settled’ in r.1.03 of the Regulations requires that the person be lawfully resident in Australia for a reasonable period.

   Meaning of ‘settled’

10. 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.

11. Resident is also not defined in the legislation,  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.

    Was the review applicant a settled Australian citizen at the time of application in February 2008?

12. There is evidence before the Tribunal that the review applicant is one of two children born to the visa applicant.  The Tribunal accepts this evidence and also the evidence that the review applicant became an Australian citizen on 26 January 2008.  The Tribunal accepts the review applicant had by 2008 established a career in Australia as a civil engineer and that his financial affairs, including bank accounts and superannuation arrangements reflected his intention to reside in Australia on an ongoing basis.  The Tribunal accepts the review applicant’s three children were born in Australia and hold Australian citizenship by virtue of their place of birth and their parents’ Australian citizenship.  The Tribunal accepts the community and professional links the review applicant developed in Australia are indicative of a person who was developing strong, enduring ties to Australia.

13. The Tribunal has reviewed the sponsor’s movement records. At the time of application in February 2008 the sponsor was lawfully residing in Australia. On the basis of this cumulative evidence, the Tribunal finds the review applicant was, at the time his mother applied for the visa in February 2008, a settled Australian citizen within the meaning of r.1.03.

14. Therefore, the Tribunal finds that, at the time of application, the visa applicant was a parent of a person who was a settled Australian citizen and therefore satisfies cl.103.211.

    Is the review applicant a settled Australian citizen at the time of decision?

15. The review applicant has at the time of this decision been back in Australia for only some weeks during 2018 and is now offshore again.  The Tribunal notes his pattern of residency in Australia in recent years does not reflect what is discussed as a reasonable period in the Department’s policy guidance, which in PAM3: Div 1.4 Section 16, indicates a period of two years is reasonable, but also indicates that a shorter period of residence of at least 3 months can be considered to be a reasonable period in particular circumstances. Such as where there are compassionate and compelling circumstances or the Australian citizen, having resided overseas for a lengthy period, has returned to Australia and wishes to sponsor family members, but may be precluded from doing so due to the ‘two year’ policy requirement.  The Tribunal has noted that PAM3 is not binding and the Tribunal must ensure that it applies the test in the Regulations having regard to all the evidence and circumstances in a particular case.

16. The Tribunal has considered the review applicants’ circumstances carefully, having regard to the need to look at all of the circumstances of the case reasonably.  The review applicant’s movement records are consistent with his oral evidence and written submissions he has provided regarding his departure from Australia in 2013. The Tribunal accepts the review applicant took up an employment contract, with a branch of his Australian employer, in Qatar in August 2013.  The Tribunal accepts the review applicant relocated to Qatar with his family and took up residence in that country on temporary visa, which was tied to his employment in that country.  The Tribunal accepts the review applicant has at all times remained on a temporary visa allowing him to work in Qatar and at no time has sort a more permanent visa which would have allowed him to settle in that country. The review applicant’s movement records indicate he has returned to Australia on four occasions since August 2013, most recently in April 2018, at which time his wife and two younger children resumed ongoing residence in Australia.  The Tribunal accepts the review applicant has now re-established a household in Australia and that his two younger children have commenced school locally and that there is an intention the review applicant will return to Australia on an ongoing basis once his eldest child has completed his primary school education in June 2018. The Tribunal accepts the review applicant is actively seeking appropriate employment back in Australia as a civil engineer.

17. The Tribunal has taken into account the relevant test is not whether the review applicant is residing in Australia immediately before the time of decision and is rather, whether the review applicant was at the time of decision a person who was lawfully resident in Australia for a reasonable period. The Tribunal considers it relevant that factors other than simply the length of stay may be taken into account when determining the question of whether a person has been resident in Australia for a reasonable period Naiker v MIMA [2002]. Further to this, the Tribunal notes that what constitutes a ‘reasonable period’ for the purpose of the definition of ‘settled’ may also depend on the steps the person in question has taken to establish his or her residence in Australia.

18. Despite being away from Australia for the bulk of the time since August 2013, the Tribunal is satisfied the review applicant has maintained significant financial links to Australia and as well, private health insurance and professional ties in Australia during the period he has been working offshore. The Tribunal is satisfied the applicant and his wife settled lawfully in Australia in 2005 and were subsequently granted Australian citizenship.  The Tribunal is satisfied the review applicant and his wife have the intention to raise their family and maintain a household in Australia for the foreseeable future. The Tribunal accepts the review applicant also has a commitment to caring for his mother as she ages and becomes increasingly frail and less independent.  The Tribunal is satisfied he has a cultural responsibility to take on this role and that his only sibling’s ability to look after their mother is comprised by her own health conditions.  The Tribunal accepts that the review applicant would need to move to where his mother could legally reside, in the event her visa application is not successful and that this would result in significant hardship to all involved, not least to his three Australian citizen children, as a result of the separation of the review applicant from his immediate family unit that would result from their remaining in Australia if he was to go offshore to care for his mother.

19. Taking all of the circumstances of the review applicant into account, the Tribunal is satisfied there are cogent and compelling reasons to not rigidly apply the policy as outlined in PAM3 and in the particular circumstances of this case considers that, at the time of this decision, the review applicant is lawfully resident in Australia and has been so for a reasonable period and therefore meets the requirement to be a settled Australian citizen. It follows that his mother, the visa applicant, is a parent of a settled Australian citizen and so meet cl.103.221.

    CONCLUSIONS

20. For the reasons given above the Tribunal finds the visa applicant satisfies the requirements of cl.103.211 and cl.103.221.

    DECISION

21. 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.

    David Barker
    Member