Fernando (Migration)

[2018] AATA 1487

Fernando (Migration) [2018] AATA 1487 (30 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Niroshini Fernando

VISA APPLICANT:  Mrs Nirmala Fernando

CASE NUMBER:  1713725

DIBP REFERENCE(S):  2008/063497 OSF2008/063497

MEMBER:Helena Claringbold

DATE:30 April 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 30 April 2018 at 8:04am

CATCHWORDS
Migration – Parent (Migrant) (Class AX) visa – Subclass 103 (Parent) visa – Whether the sponsor is a settled Australian citizen – Sponsor’s lengthy absence from Australia – Leased their property in Sri Lanka – Returned to Australia with husband and son – Purchased property in Australia – Maintained bank accounts in Australia – Supportive witness statements – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 13, 65, 68, 82
Migration Regulations 1994, r 1.03 Schedule 2 cls 103.211, 103.221

CASES
Naiker v MIMA [2002] FCA 888
Huang v MIMIA [2007] FMCA 720

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. On 11 June 2008, Mrs Nirmala Fernando, the visa applicant applied for the visa.  The application was made on the basis of her parental relationship with Ms Niroshini Fernando also known as Niroshini Pethiyagoda, the sponsor.

3. On 8 May 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The refusal was based on the applicant not satisfying cl.103.211 and cl.103.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the sponsor was a ‘settled’ Australian citizen. This is a review of the delegate’s decision.

4. On 16 April 2018, the sponsor appeared before the Tribunal to give evidence and present arguments. She provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Ms Nilkanthi Perumal and Mr Maximus Perumal.              The sponsor was represented.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection’s case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether, at the time of application and time of decision, the visa applicant is 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.

   Is the sponsor a settled Australian citizen?

7. The primary criteria requires 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 of the Regulations and that this criterion continued to be satisfied at the time of decision cl.103.221 of the Regulations.

   Meaning of ‘settled’

8. 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’.

9. 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.

   Lawfully Resident

10. The expression ‘lawfully resident’ is not defined in the Migration Act 1958 (the Act) or the Regulations. An individual’s residence in Australia must not be unlawful in order for him or her to be ‘settled’. Section 13(1) of the Act defines a ‘lawful non-citizen’ as a non-citizen in the migration zone who holds a visa that is in effect.[1]

    [1] A non-citizen is a person who is not an Australian citizen: s.5. Section 68 addresses when a visa is in effect and s.82 addresses when visas cease to be in effect.

11. ‘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.

    Reasonable Period

12. The term ‘reasonable period’ is also undefined in the legislation. The question of what is a ‘reasonable period’ was considered in Huang v MIMIA [2007] FMCA 720 (Cameron FM, 16 May 2007). In that case the Court indicated that a ‘reasonable period’ need not be a lengthy period, and that individual circumstances will affect what amounts to a reasonable period.

13. Although not binding on the Tribunal, Departmental guidelines (PAM 3)  state that two years is generally considered to be a ‘reasonable period,’ although when assessing whether or not a person is ‘settled,’ policy is that each case is to be considered on an individual basis according to the facts of the case such as extended periods of temporary residence.   

    Background on the evidence

    Claims and findings

14. Mrs Nirmala Fernando was born in 1944 in Sri Lanka. She has two siblings living in Australia and one sibling living in Sri Lanka. Her spousal partner, Mr Lakshman Fernando, died in April 2007. Her son, Mr Sidath Fernando, is an Australian Citizen living in Australia. Initially Sidath, was the sponsor in this visa application. However, on 23 January 2017, Sidath withdrew sponsorship for the visa application.  On 8 February 2017, the visa applicant requested that her Australian citizen daughter, Ms Niroshini Fernando, be appointed as sponsor.

15. Ms Niroshini Fernando was born in 1969 in Sri Lanka. She is a citizen of Sri Lanka and Australia. Her mother is the visa applicant. In January 2006, she married Mr Ellawala Isuru Prasad Bandara Pethiyagoda. There is one child from this relationship.

16. In March 2017 and April 2018, the sponsor provided information about her circumstances.  She stated that she has always had strong links with Australia. In 1990 she studied in Australia for one term before returning to Sri Lanka. In September 2002, she entered Australia as a permanent resident. In December 2003, she completed a Master’s in Business Administration. After gaining this qualification, she was employed in a senior management role in Australia. In 2005, she was granted Australian citizenship. Around this time her father’s health declined and she felt compelled to return to Sri Lanka. In April 2006, she married her husband in Sri Lanka and shortly afterwards, in April 2007, her father died.  She entered the workforce in Sri Lanka to gain experience to enhance her prospects and bring that experience back to Australia.  She became head of marketing for a large organisation in Sri Lanka and later became deputy general manager. As well as gaining experience in the workplace, the sponsor and her husband decided that their son would complete primary school in Sri Lanka. This decision was taken, in part because of the bond between their son and the visa applicant and also because their son excelled in school. 

17. The sponsor told the Tribunal that it has always been her intention to return to and live in Australia permanently.  To this end, her son was granted Australian citizen ship in 2008. Also in 2008, the visa applicant applied for the visa. In 2010, she purchased property in Australia and continues to own that property and has maintained bank accounts in Australia. In January 2014, her husband was granted a Partner visa.

18. Other information is that, the sponsor resigned her position as Deputy General Manager of Marketing effective from September 2017.  Additionally, on the evidence, the sponsor’s husband resigned his position effective from December 2017. The Tribunal was told that the sponsor and her husband have leased their property in Sri Lanka and will be looking for a home in Australia.

19. In January 2018, the sponsor and her son entered Australia. The sponsor’s son completed his first term at school in Australia. The sponsor told the Tribunal that she has applied for numerous positions and is confident that she will obtain suitable employment in Australia.  She said that she and her husband and son genuinely intend to be permanently settled in Australia.

20. The witnesses provided evidence in support of the sponsor’s history in Australia and her commitment to living in Australia. They provided agreed evidence with the sponsor about her absence from Australia. They also pledged support for the sponsor and the visa applicant.

21. The Tribunal considered whether the sponsor’s lengthy absence from Australia is ‘reasonable’ in terms of the legislation. While it is concerned about the sponsor’s absence, it has weighted this against the compassionate circumstances for her absence. In addition, it considered the sponsor’s lengthy history with Australia of approximately 28 years and her commitment to Australia as is evidenced by her preparations to return to Australia, by her ownership of property and her maintenance of bank accounts and her regular visits to Australia. It also considered that the sponsor is now living in Australia, with her husband and son. It is satisfied that, in this case, the sponsor’s absence from Australia, is reasonable and that she has been c.

22. Based on the above information the Tribunal, is satisfied that the visa applicant is the parent of a person who was a settled Australian citizen at the time of application and at the time of this decision; the applicant therefore satisfies cl.103.211 and cl.103.221 of Schedule 2 of the Regulations.

23. For the reasons given above the Tribunal finds the visa applicant satisfies the requirements of cl.103.211 and cl.103.221 of Schedule 2 of the Regulations.

    DECISION

24. 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.

    Helena Claringbold
    Member