Hao (Migration)

[2018] AATA 698

Hao (Migration) [2018] AATA 698 (2 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Jie Hao

VISA APPLICANT:  Ms Guanglan Wei

CASE NUMBER:  1621869

DIBP REFERENCE(S):  2007/072860

MEMBER:Russell Matheson

DATE:2 March 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 02 March 2018 at 9:19am

CATCHWORDS

Migration – Parent (Migrant) (Class AX) visa – Subclass 103 (Parent) visa – Sponsor – Australian citizen – Australian resident for a reasonable period – Currently working and living in China – Significant financial resources to support her parents

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.05 Schedule 1 Item 1124 Schedule 2 cls 103.211, 103.212, 103.221- 103.230

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. The visa applicant applied for the visa on 26 November 2007. The delegate refused to grant the visa on 26 October 2016 on the basis that cl.103.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not satisfied because the delegate was not satisfied the sponsor is a settled citizen. The sponsor seeks review of the delegate’s decision.

   RELEVANT LAW

3. 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.

4. 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.

5. The criteria for a Subclass 103 visa are set out in Part 103 of Schedule 2 to the Regulations.

6. 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. Under r.1.03 of the Regulations, ‘parent’ includes an adoptive or step parent and ‘step-child’ in relation to a parent is a child who is the natural or adopted child of a person’s current or, in certain circumstances, former spouse.

7. 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.

8. The visa applicant must also satisfy the ‘balance of family’ test: cl.103.213. The ‘balance of family test’ is defined at r.1.05 of the Regulations as follows:

   1.05Balance of family test

   (1)For the purposes of this regulation:

   (a)a person is a child of another person (the parent) if the person is a child, adopted child or step child of:

   (i)the parent; or

   (ii)a spouse of the parent; or

   (iii)a former spouse of the parent, if the child was born or adopted:

   (A)before the parent became the spouse of the former spouse; or

   (B)while the parent was the spouse of the former spouse; and

   (b)if the whereabouts of a child of the parent are unknown, the child is taken to be resident in the usual country of residence of the parent.

   (2)A parent satisfies the balance of family test if:

   (a)each of the children of the parent is either:

   (i)lawfully and permanently resident in Australia; or

   (ii)a person who is:

   (A)an eligible New Zealand citizen; and

   (B)usually resident in Australia; or

   (b)the number of children of the parent who are lawfully and permanently resident in Australia or are eligible New Zealand citizens usually resident in Australia is:

   (i)greater than, or equal to, the total number of children of the parent who are resident overseas; or

   (ii)greater than the greatest number of children of the parent who are resident in any single overseas country.

   (3)In applying the balance of family test, no account is to be taken of a child of the parent:

   (a)if the child has been removed by court order, by adoption or by operation of law (other than in consequence of marriage) from the exclusive custody of the parent; or

   (b)if the child is resident in a country where the child suffers persecution or abuse of human rights and it is not possible to reunite the child and the parent in another country; or

   (c)if the child is resident in a refugee camp operated by:

   (i)the United Nations High Commissioner for Refugees; or

   (ii)the government of Hong Kong;

   and is registered by the Commissioner as a refugee; or

   (d)if:

   (i)the child is a step child of the parent; and

   (ii)the child had turned 18 at the time at which the parent became the spouse of the child’s other parent;

   and one or more of the following subparagraphs applies:

   (iii)the other parent is deceased; or

   (iv)the parent is permanently separated from the other parent; or

   (v)the parent is divorced from the other parent.

9. 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.

10. 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.

11. The issue in the present case is whether the primary visa applicant was, at the time of application, the parent of a settled Australian citizen or a settled Australian permanent resident or a settled eligible New Zealand citizen as required by cl.103.211, and whether he continues to satisfy that criterion at the time of decision, as required by cl.103.221.

    CLAIMS AND EVIDENCE

12. The Tribunal has taken into consideration all the evidence in the Department’s file OSF2007/072860, folios numbered 1-175, and the Tribunal file 1621869, folios numbered       1- 46 and the oral evidence at the Tribunal hearing.

13. The Department indicated in its decision dated 26 October 2016 that the sponsor resided in Australia for a total of 72 days since departing Australia on 28 June 2014. Her last visit to Australia at the time of the Delegate’s decision was for a period of 19 days from 31 January 2016 to 18 February 2016.

14. On 16 June 2106 an invitation to comment letter was sent to the Authorised person (Jie Hao) via email, inviting the applicants to comment and provide information in relation to the sponsor’s extended absence from Australia. The sponsor provided a written response from the Authorised person stating that she is currently residing in China with her family and working as a lecturer at Tsinghua University in Beijing including research projects whilst her husband is working in private enterprise. The sponsor said that she was planned to live in Sydney in the future and is currently working on a number of research projects which would help her find a job that matches her expectations back in Australia. The sponsor sated that the projects had no time period and it depends on the projects progress, the successfulness of research results, the writing and publication schedule and then the availability of academic positions in Australia. The sponsor has significant savings and two properties in Australia. The sponsor also provided documentary evidence such as her children’s Australian birth certificates, ANZ bank statement, contract for sale of land and two research publications.

15. According to Departmental records the sponsor has returned to Australia on two occasions since the Delegate’s decision in October 2016, for the periods 31 August to 5 September 2106 and 18 June to 26 June 2017, spending a further 25 days in Australia. The sponsor and her family were also in Australia and attending the Tribunal hearing for a further 7 days from 20 February to 26 February 2018.

16. The sponsor presented a number of documents as evidence to be considered by the Tribunal as to whether the sponsor is a settled Australian citizen. The documents presented consisted of:

    ·The sponsors Australian passport and Chinese visa;

    ·The sponsors husbands Australian visa and Chinese visas;

    ·The sponsors two children’s Australian passport’s and Chinese visas;

    ·A Land Title Certificate;

    ·ANZ Bank Statements for the last six months;

    ·Letter of support from Professor Welch of University of Sydney.

17. The sponsor’s evidence at the hearing is that she considers herself an Australian citizen and that she stared studying in Australia as a 15 year old and has been studying for over 20 years. The sponsor stated that during her time of study in Australia she had obtained her Bachelors, two Masters Degrees and Doctor Degree. Further stating that she was focussed on her career development and this was the peak time of her career because of her age. The sponsor said that she had published ten journals and had strong professional and academic links with Australia. The sponsor said that she had strong professional links with professors from University New South Wales, Melbourne University and Australian national University.

18. The sponsor stated that she is on a temporary contract that is renewed every three years and that her working visa expires in June 2019 and she hopes that her research is completed by then and that she intends to continue her career in Australia after June 2019. The sponsor although she is not personally or physically in Australia at the present time she maintains strong professional links in Australia and that her research will benefit the Australian community.

19. The sponsor stated that she had attended to conferences in Australia in September 2016 and June 2017. She attended the 9^th Annual Academy of Innovation Conference in 2016 and was also a conference co-organiser for that event and also attended the Academy of management Conference in 2017 maintaining her strong professional links.

20. The sponsor said that her husband is currently working in Beijing in the private industry in property management and has always made adjustments in his career so that she could continue her career path and research. Further stating that her children are currently studying in an international school in Beijing and that her parents are supporting the couple with the children’s schooling. The sponsor said that she is currently sourcing an international school in Sydney for a smooth transition for the children when they return to Australia. Further stating that she had spoken to an international school in Broadway about the children’s enrolment. The sponsor’s children are Australian citizens, Cecilia Lui born 30 December 2008 May 2006 and Anthony Lui born on 23 August 2007 both at Royal Prince Alfred Hospital, Camperdown.

21. The sponsor’s evidence in regard to the 72 days that she has spent in Australia mentioned in the Delegate’s’ decision record is that she returned to Australia with her family for holidays and to catch up with friends. Further stating that they stayed at their family home in Zetland and that it has always remained vacant because it is their primary place of residence. The sponsor said that the couple also have and investment property in Australia. The sponsor said that the couple are financially secure and that they are able to support and care for support her parents if they come to Australia and that they would live in the second property next door to them if granted a visa.

    FINDINGS AND REASONS

22. The visa application was made on the basis that the visa applicants are the parents of Dr Jie Hao who is an Australian citizen (‘the child’). The evidence before the Tribunal is that the sponsor, Dr Hao is the child of Mr Guang Lan WEI (born 28 December 1955) and Mrs Qi Ping HAO (born 4 September 1955). The Tribunal makes that finding.

23. 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’.

24. 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.

25. The term ‘reasonable period’ is also undefined in the legislation.

26. 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.

27. 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.   

28. 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.

29. In this case, the chronology of the sponsor’s movement’s shows she arrived in Australia on 23 July 1998 on a student visa. Her primary place of residence is in Australia in the suburb of Zetland, Sydney. She obtained Australian citizenship on 27 June 2009. The sponsor has studied, worked and lived in Australia for nearly 20 years. The sponsor has been working full time and living in China for the past three and half years with her family and working as a lecturer at Tsinghua University in Beijing. The sponsor departed Australia on 28 June 2014 for employment due to the limited opportunities here in Australia.

30. The evidence from the sponsor that she has lived and studied in Australia since 1998. The sponsor stated that during her time of study in Australia she had obtained her Bachelors, two Masters Degrees and Doctor Degree at Australian universities and was married to her current partner Mr Xin Lui on 5 May 2006 and there are two children who are Australian citizens born to the marriage. The sponsor accepted a position of employment with Tsinghua University in Beijing for a non-stated period although her Chinese work visa expires in June 2019 and she hopes to complete her research by then and return to Australia to work. The sponsor has returned for a period of seventy two days from her departure date in June 2014 until February 2016 as mentioned in the delegate’s decision. The sponsor has returned to Australia for a further fifteen days from August 2016 to June 2017. The sponsor returned to Australia on 20 February to attend the Tribunal hearing held on 22 February 2018 and departed on 26 February 2018.The sponsor stated that she and her partner own two properties in Australia and have significant financial resources to support her parents. The Tribunal accepts that the sponsor has only returned for a short period of time during her employment in China and that her Chinese working visa expires in June 2019 and that she has all intentions of returning to Australia in the near future. The Tribunal accepts that a ‘reasonable period’ need not be a lengthy period, and that individual circumstances will affect what amounts to a reasonable period. The Tribunal is satisfied that the sponsor has spent a reasonable period of time in Australia and that her career path and employment circumstances have prevented her from spending longer periods of time in Australia. The sponsor stated that she has continued to maintain her strong professional links and friendships in Australia since departing for her overseas employment.

31. The Tribunal is satisfied the sponsor has demonstrated her intentions to live permanently in Australia despite her current employment situation. The Tribunal finds she has been lawfully resident in Australia for a reasonable period as required by the definition of settled in r.1.03 and is a settled Australian citizen at the time of decision.

32. The Tribunal finds that the sponsor was a settled permanent Australian resident at the time of application, 26 November 2007.

33. The sponsor according to Departmental records at the time of application was the holder of a permanent skilled independent overseas student visa (DD8880) issued on 10 January 2007 which ceased on 10 January 2012.  The sponsor became an Australian citizen on 27 June 2009. Therefore the sponsor was a non-citizen, being usually resident in Australia and the holder of a permanent visa at the time of application. The sponsor and her husband purchased their residential property and an investment property in Australia in 2008.The sponsor is currently living with her family in China working as a lecturer and they return to Australia for family holidays and live at their residence at Zetland which always remains unoccupied when they are not in Australia. The applicant has strong intellectual and professional ties in Australia and was working at the Deputy Vice-Chancellors office at Sydney University before travelling overseas for employment linked to her research. The sponsor and her family have lived permanently in their home at Zetland from 2008 until the sponsor went to China in 2014. On evidence the sponsor has always intended to return to Australia to live permanently in Australia and make Zetland their home.

34. The Tribunal is satisfied the sponsor was lawfully resident in Australia for a reasonable period as required by the definition of settled in r.1.03 at the time of application.

35. The Tribunal is satisfied that the applicant is a parent of the sponsor who was at the time of application a settled Australian permanent resident, and is now a settled Australian citizen.  

    CONCLUSIONS

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

    DECISION

37. The Tribunal remits the applications for Parent (Migrant) (Class AX) visas for reconsideration, with the direction that the first named 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.

    Russell Matheson
    Member