Fernando (Migration)

This case concerned an appeal by Mrs Nirmala Fernando against a decision regarding her application for a Parent (Migrant) (Class AX) visa, Subclass 103. The primary issue was whether the proposed sponsor, Mrs Fernando's Australian citizen daughter, Ms Niroshini Fernando, was a "settled" Australian citizen at the time of the visa application and at the time of the decision, as required by the relevant regulations.

The court was required to determine the meaning of "settled" in the context of migration law, specifically whether the sponsor had been "lawfully resident in Australia" for a "reasonable period." This involved considering both physical presence and the intention to treat Australia as home. The court also had to assess whether the sponsor's extended periods of absence from Australia, including her return to Sri Lanka to care for her father and to gain work experience, and her husband's career, were consistent with being "settled" in Australia.

The court reasoned that the term "settled" under the Migration Regulations is not solely determined by the length of physical presence in Australia. Drawing on precedent, the court held that residence is broader than mere length of stay and requires an intention to treat Australia as home. The court considered evidence of the sponsor's strong links to Australia, including her prior study, permanent residency, completion of a Master's degree, employment in a senior management role, and eventual grant of Australian citizenship. Despite her subsequent return to Sri Lanka, the court noted her continued ownership of Australian property, maintenance of Australian bank accounts, and stated intention to return permanently to Australia. The court found that the sponsor's circumstances, including her husband's resignation from his Sri Lankan position and their leasing of their Sri Lankan property, indicated an intention to re-establish residence in Australia.

Consequently, the Tribunal found that the visa applicant met the requirements of clauses 103.211 and 103.221 of Schedule 2 of the Regulations. The Tribunal remitted the application for reconsideration with a direction that the visa applicant met these criteria.