Koh (Migration)

[2018] AATA 2320

Koh (Migration) [2018] AATA 2320 (29 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Chee Kiat Mervin Koh

VISA APPLICANTS:  Mrs Siok Kheng Koh
Mr Kee San Koh

CASE NUMBER:  1513141

DIBP REFERENCE(S):  2006/063951 OSF2006/063951

MEMBER:John Billings

DATE:29 June 2018

PLACE OF DECISION:  Melbourne

DECISION: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.

Statement made on 29 June 2018 at 12:37pm

CATCHWORDS
Migration –Parent (Migrant) (Class AX) – Subclass 103 (Parent) visa – Whether the review applicant is a settled Australian citizen – Working overseas – Ties to Australia – Property and personal effects – Australian born children – Genuine intention to return to Australia – Review applicant’s father – Marriage certificate provided Member of the same family unit – 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, 103.221

CASES

Gauthiez v MIEA (1994) 53 FCR 512
Hafza v Director General of Social Security [1985] FCA
Huang v MIMIA [2007] FMCA 720
Mathai v Kwee [2005] FCA 932
Re Taylor [1992] FCA 296

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 19 August 2015 by a delegate of the Minister for Immigration to refuse to grant the visa applicants Parent (Migrant) (Class AX) visas under s.65 of the Migration Act 1958 (the Act).

2. The review applicant, Mr Koh, is a 46 year old Australian citizen.  He is the son of the visa applicants.  (The Tribunal refers to the visa applicants as the applicants or as Mr Koh’s mother, Mr Koh’s father, or Mr Koh’s parents).  Mr Koh’s parents applied for the visa on 29 May 2006[1].  Mr Koh sponsored them for the visas. 

   [1] The primary decision records the date as 9 May 2006, in apparent error. 

3. At the time the application for the visas was lodged, the Parent (Migrant) (Class AX) visa contained Subclass 103 (Parent): Item 1124 of Schedule 1 to the Migration Regulations 1994 (the Regulations). 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. The criteria for a Subclass 103 visa are set out in Part 103 of Schedule 2 to the Regulations. The primary criteria must be satisfied by at least one member of the family unit who is an applicant for the visa. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

4. 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). The primary criteria further require that at the time of decision the visa applicant continues to satisfy cl.103.211: cl.103.221. The delegate refused to grant the visas on the basis that cl.103.221 of Schedule 2 to the Regulations was not satisfied. Making her decision on 19 August 2015, the delegate was not satisfied that, at that date, Mr Koh was a settled Australian citizen: see further below.

5. Mr Koh applied to the Tribunal for review on 24 September 2015.  He provided a copy of the primary decision to the Tribunal.   

6. On 8 March 2017 Mr Koh attended a hearing by telephone from Singapore to give evidence and present arguments.  The Tribunal also received oral evidence from his parents in Singapore.  A further hearing was conducted on 25 June 2018.  On this occasion Mr Koh participated by telephone from Hong Kong and his parents participated by telephone from Singapore. 

7. Mr Koh was born in Singapore.  He first arrived in Australia on 17 February 1994 holding a Class UA Subclass 461 Visitor visa.  He was subsequently granted further visas, including Student visas and a Resident Return visa.  Mr Koh was granted Australian citizenship on 26 January 2005.  Mr Koh’s mother, aged 68 years, and father, aged 70 years, are nationals of Singapore.  They were married there in 1971.  They are retired teachers.  Mr Koh’s parents have made numerous visits to Australia since the mid-1990s.  Mr Koh and his wife, Ms Lay Hoon Lorraine Toh, whom he married in 2002 and who is also an Australian citizen, have three children: Dylan, aged 12 years, Cassandra, aged eight years, and Bryan, aged five years.  Mr Koh has one sister who is aged in her early forties.  Mr Koh’s sister, who is also a national of Singapore, lives in Singapore with her husband and child.  Mr Koh’s sister attended university in Australia. 

8. The Department’s movement records show that Mr Koh was in Australia for most of the time during the 10 years immediately after he first arrived in 1994.  Mr Koh was in Australia at the date of the visa application, and during the two years immediately before the date of application, save for 25 days when he was offshore.  His first child was born in Melbourne during that two year period.  Between the date of the visa application and the date of the primary decision Mr Koh departed and re-entered Australia many times but he spent a very substantial part of that time onshore.  During this period his second child was born in Sydney and his third child was born in Hong Kong.  Then, in particular, Mr Koh departed Australia on 8 April 2012.  Between that date and the date of the primary decision he re-entered Australia twice – in March and July 2015 – for a total of 18 days.  Since the date of the primary decision Mr Koh has re-entered Australia on four occasions:  in July and September 2017 and in March and May 2018.  He stayed in Australia for five days on each occasion.   

9. The primary decision includes the following information.  The visa application was placed in a queue to be assessed and, years later, was released from the queue.  It was during the time that the application was in the queue that Mr Koh departed Australia on 8 April 2012.  On 6 February 2014 the Department sent an email inviting the applicants to provide information within 28 days about Mr Koh’s absence from Australia.  No response was received.  On 13 May 2014 the Department sent a further email.  This time there was a response.  That was dated 5 July 2014.  The applicants advised that they still wished to proceed with the application.  They said that they and Mr Koh would return to Australia in September 2014.  On 7 July 2014 the Department sent the applicants a further email stating that Mr Koh had to return to Australia as a resident in order for the application to proceed.  The Department also requested evidence that Mr Koh’s move to Australia would be permanent.  On 31 October 2014 the Department received an email from the applicants.  The email stated that Mr Koh’s personal effects had been sent from Hong Kong to Melbourne in September 2014; that “the” car, and gas and electricity accounts (in Melbourne) were registered in Mr Koh’s name; and that Mr Koh owns a few properties in Australia.  The email further stated that Mr Koh was outside Australia for the reason that he had to earn a living.  It further stated that Mr Koh has three children who are all Australian citizens and who would all be attending schools in Australia.  On 6 November 2014 the Department sent an email to the applicants inquiring when Mr Koh planned to return to Australia and reside here permanently.  The Department also requested Mr Koh to provide a letter from his employer or an employment contract outlining his position or role.  No evidence was received by the Department in response to that email.    There was not even evidence received to show that Mr Koh has three children.  On that basis the delegate was not satisfied that Mr Koh intended to reside in Australia and was not satisfied that he was a settled Australian citizen. 

10. The Department’s file includes copies of Mr Koh’s certificate of Australian citizenship; his and his parents’ birth certificates and relevant passport pages; and his parents’ marriage certificate. 

11. Mr Koh submitted to the Tribunal documents including copies of his children’s birth certificates, utilities accounts and other documents relating to his real estate and his car in Australia and his employer in Hong Kong.  After the hearing Mr Koh submitted information about a business venture in Australia which he explored from about 2014 but which proved not to be successful. 

12. Mr Koh confirmed in oral evidence to the Tribunal that and his wife and children have been living in Singapore in recent years but he and his wife have now gone to Hong Kong to work and the children are soon to join them there.  Mr Koh works as the manager of a software company and visits countries in Asia so (apart from business trips) there has been “no chance” for him to return to Australia for the time being.  He and his wife have dual Australian-Singaporean citizenship. Asked about his children he said simply that they hold Australian passports only.  Mr Koh agreed that as at the date of the visa application he had been residing in Australia for the previous two years, save for a total of 25 days when he was overseas.  He also agreed that in the two years before the date of the decision to refuse the visas he was outside Australia apart from a total of 18 days. 

13. The Tribunal explored the points set out in the applicants’ email dated 31 October 2014.  Mr Koh’s personal effects – including clothing and bicycles – were shipped to a property in Melbourne from Hong Kong in September 2014.   He and his wife and his parents jointly own that property.  His car is garaged there.  Mr Koh also has a car and other personal effects in Hong Kong.  His parents were staying in the Melbourne property until early 2017 when they went back to Singapore.  The property is a four bedroom house that was built with the intention that Mr Koh and his family, including his parents, would live there.  The property is let at present.  The utilities accounts for the property are in his name.  Mr Koh has other properties in Australia that are let – one in Melbourne and two in Sydney.  The properties are managed by agents.  Apart from the Melbourne property they jointly own with Mr Koh, Mr Koh’s parents own two properties in Victoria and one in New South Wales.  In 2011 Mr Koh’s wife, also an Australian citizen, was employed by an Australian bank.  The bank asked her to set up an office in Hong Kong.  Since then she has obtained a new job, employed by a German bank.  Mr Koh, his wife, and his parents were in Hong Kong before 2015 when a job offer saw them move to Singapore.  Dylan, the eldest child, attended grade one of school in Australia.  Otherwise, none of the children have attended school here.

14. Mr Koh also told the Tribunal about two Australian bank accounts that he has maintained. 

15. When Mr Koh returned to Australia in 2017 and 2018 he visited clients in Melbourne and Sydney.  He did not visit the Point Cook property because his parents were no longer living there. 

16. The Tribunal explored why Mr Koh did not return to Australia permanently in September 2014 when it had been stated in effect that was his intention.  In correspondence and in oral evidence Mr Koh and his parents said in essence that the state of the world economy and Mr Koh’s and Mr Koh’s wife’s job opportunities prompted them to be in Hong Kong and Singapore in recent years.  Mr Koh told the Tribunal that it was hard for him to get a comparable job in Australia.  He said that he intends to return to Australia in two-three years’ time.  He said that now the most important factor that would see the family return to Australia is the desire of his eldest son, Dylan, to go to school here.  Dylan is currently in year seven.  It is planned that Dylan will enter a Melbourne private school in year 11.  There has been an application made to the school regarding that. 

17. The Tribunal asked Mr Koh and his parents whether it was intended that his parents would be in Australia with the children but without Mr Koh and his wife also here.  Mr Koh said “yes and no”, explaining that probably he or his wife would continue working (in Asia).  He said that things would depend on the outcome of the visa application.  Mr Koh’s mother said that once the visas were obtained Mr Koh or his wife could still stay outside Australia.  She said she could not comment on whether it would be Mr Koh or his wife who would.  Mr Koh’s father said there was the possibility that (for a period of time) he and Mr Koh’s mother would be in Australia by themselves with grandchildren but he also said that in that event Mr Koh and his wife would make arrangements to return to Australia.   

    FINDINGS AND REASONS

18. 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.  At the time of decision, the primary criteria to be satisfied include that the visa applicant continues to satisfy the criterion in cl.103.211: cl.103.221.

19. The issue for the Tribunal to determine is whether Ms Koh meets cl.103.221. 

20. There is no controversy concerning the relationship between Mr Koh and the visa applicants.  That is to say there is no controversy that the visa applicants are Mr Koh’s parents.  On the basis of the evidence before it, including the parties’ birth certificates, the Tribunal finds that the visa applicants Mr Koh’s parents.  There is no controversy, either, that at the date of the visa application Mr Koh was a settled Australian citizen. On the basis of the evidence that the Tribunal has described, including Mr Koh’s certificate of Australian citizenship and the Department’s movement records, the Tribunal finds that at the date of the visa application, Mr Koh was a settled Australian citizen. 

21. The issue is whether, at the time of decision, Ms Koh continues to be the parent of a settled Australian citizen.  The issue, therefore, is whether Mr Koh is a settled Australian citizen.

22. Ms Koh has stated that she did not receive an important email from the Department prior to the primary decision.  It is possible that there was confusion at some point.  Whatever the situation, the Tribunal has considerably more evidence concerning the issue whether Mr Koh is a settled Australian citizen than was available at the time the delegate considered the matter.          

23. The definition of ‘settled’ in r.1.03 of the Regulations requires that the relevant person be lawfully resident in Australia for a reasonable period. As noted by Hely J in Naiker v MIMA [2002] FCA 888, “settled” “is given a particular meaning by the Regulations, whether or not it accords with its ordinary meaning”: at [25]. “Resident” is not defined in the Regulations. Hely J noted its ordinary meaning as “to dwell permanently or for a considerable time”. In the context of r.1.03 his Honour considered that “resident” should be interpreted to mean “ordinarily”, “habitually” or “usually” resident: at [27]. “Hence”, his Honour went on to say, “factors other than the mere length of stay in Australia can be germane to the question of whether a person has been resident in Australia for a reasonable time”: at [28].

24. While Naiker concerned r.1.03, courts have considered the above expressions or similar expressions in a range of contexts such as social security, taxation and bankruptcy. The general principles that emerge from the authorities include that “[t]he meaning ordinarily given to the phrases ‘resides’, ‘usually resides’ and ‘ordinarily resides’ is such as to make the result in a given case depend largely upon matters of fact and degree”: Gauthiez v MIEA (1994) 53 FCR 512, per Gummow J. That said, the “application of the general concept of residence to any particular case must depend on the wording, and underlying purposes, of the particular statute”: see Hafza v Director General of Social Security [1985] FCA 164 at [14], per Wilcox J.

25. In Hafza the purpose and wording of legislation were different to the purpose and wording of the Regulations presently under consideration by the Tribunal.  In Hafza the Court interpreted the expression “usual place of residence” more narrowly than the term “resident”. The general statements made in the case about the term “resident” are still important. They include that as a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever: at [13]. A person does not necessarily cease to be resident in a place because he or she is physically absent. The test is whether the person has retained a continuity of association with the place together with an intention to return to that place and an attitude that that place remains “home”. A person may simultaneously be a resident in more than one place: at [14].

26. Just as a person may simultaneously be resident in more than one place, so too may a person be ordinarily resident in more than one place: see Re Taylor [1992] FCA 296 and Mathai v Kwee [2005] FCA 932. Re Taylor and Mathai v Kwee were bankruptcy cases involving the question whether a debtor was ordinarily resident in Australia.  In Re Taylor Lockhart J noted that to say that a person is ordinarily resident in Australia must mean something more than that the person is resident in Australia. There must be some element of permanence, to be contrasted with a place where the person stays only casually or intermittently: at [18]. Still, his Honour said, it may, depending on the circumstances, be permissible to say that at a particular time a person is ordinarily resident in each of two or more places even though the person is physically present somewhere else: at [20]. These statements were adopted by Graham J in Mathai v Kwee. Graham J went on to observe that “[i]n the era of wide bodied jet aircraft it is not quite so unusual for people to be ordinarily resident in more than one country”: at [125].

27. “Reasonable period” is not defined in the Regulations.  In Huang v MIMIA [2007] FMCA 720 the expression was considered in the context of the definition of “aged dependent relative” which provides, in part, that the visa applicant has been dependent on another person “for a reasonable period”. Cameron FM observed that a “reasonable period” need not be lengthy and that individual circumstances will affect what amounts to a reasonable period: at [44].

28. The Tribunal has had regard to the Department’s policy set out in PAM3.  PAM3 contains guidelines for assessing whether a person is “settled”.  The guidelines do not squarely fit the present case.  Under policy, the “settled” requirement can be considered met unless there are significant extended periods of absence prior to making the visa application (for example, the sponsor has been absent from Australia two years immediately prior to the date of application, and is outside Australia at the time of application).  There are categories or scenarios set out for Australian permanent resident sponsors or eligible New Zealand citizen sponsors but they are not exhaustive and tend to blur the sponsor’s circumstances at time of application and time of decision.  PAM3 then states that for Australian citizen sponsors a shorter period of lawful residence (namely three months) may be considered if there are compassionate and compelling circumstances or the sponsor, having resided overseas for a lengthy period, has returned to Australia and wishes to sponsor family members.  Here too PAM3 tends to blur the sponsor’s circumstances at the time of application and time of decision.  The policy recognises that a sponsor may be considered to have been lawfully resident for a reasonable period even where he or she has not been in Australia for “the full two-year period” immediately preceding the date the visa application is made.  The guidelines then state that “[t]he longer the sponsor has been absent from Australia, the higher burden of proof would be required” to satisfy a decision-maker that he or she meets the “settled” requirement.  (It is not clear just what is meant by “higher burden of proof”, but it may be accepted that, depending on the circumstances, the longer a sponsor is absent from Australia the more difficult it may be to establish the requisite intention). 

1. There is more than one way that the correct question or questions can be formulated.  Does Ms Koh continue to be the parent of a person who is a settled Australian citizen?  Does Ms Koh continue to be the parent of an Australian citizen lawfully resident in Australia for a reasonable period?  At the date of decision, is Mr Koh a settled Australian citizen?  At the date of decision, is Mr Koh an Australian citizen lawfully resident in Australia for a reasonable period? 

2. The Tribunal approaches the matter by asking whether Mr Koh is an Australian citizen lawfully resident in Australia for a reasonable period?  Mr Koh may be said to be ordinarily resident in more than one place.  But the Tribunal considers that Mr Koh is a settled Australian citizen.  This is for the essential reason that while he has been present in Australia for only very limited periods of time in recent years, Mr Koh has retained a continuity of association with Australia together with an intention to return here and an attitude that Australia remains “home”. 

3. The authorities make clear that physical presence of itself does not determine residence or ordinary residence.  As the Tribunal reads PAM3, it does not seek to impose a time of decision requirement that, for instance, an Australian citizen sponsor has been physically present in Australia for three months or more.  Were PAM3 to impose such a requirement it would, in the Tribunal’s view, go beyond the requirements of the Regulations and not be lawful.  The Tribunal notes in passing that, similarly, there would be no legal basis for the Department to “require” Mr Koh to return to Australia its email dated 7 July 2014 sought to do. 

4. The evidence indicates that the plans Mr Koh and his family had to live in Australia permanently were effectively postponed when the visa application was placed in a queue and then when employment and other considerations prompted them to depart Australia.  However, it is one thing to postpone the return to Australia.  It would be another thing for Mr Koh to change his mind about returning to Australia.  There is no evidence before the Tribunal that Mr Koh has ever changed his mind about returning to Australia.  The Tribunal accepts Mr Koh’s stated intention to return to Australia to be his genuine intention.  Consistent with his stated intention are the following factors, in particular, that support the Tribunal’s conclusion that Mr Koh is and has for a reasonable time been lawfully resident in Australia.  As noted in Gauthiez, citizenship and residence are distinct concepts, but not only Mr Koh but also his wife and children are Australian citizens.  Mr Koh has strong ties to Australia, having over many years lived, studied and worked here.  His older two children were born here.  For over a decade Mr Koh has owned or jointly owned a number of properties in Victoria and New South Wales.  Although his home in Melbourne has been let, Mr Koh has a car and personal effects stored there.  Mr Koh also gave oral evidence about two Australian bank accounts that he has maintained. 

5. In summary, the Tribunal finds that, at the time of application, Ms Koh was a parent of a person who is a settled Australian citizen.  She therefore satisfies cl.103.211. The Tribunal is further satisfied that at the time of decision Ms Koh continues to satisfy the criterion in cl.103.211.  She therefore satisfies cl.103.221.

6. On the basis of Mr Koh’s parents’ marriage certificate and the general evidence, the Tribunal finds that Mr Koh’s father is a member of the family unit of Mr Koh’s mother, a person who satisfies the criteria cl.103.211 and cl.103.221.  It would therefore be appropriate for Mr Koh’s father’s application to be reconsidered against the secondary criteria. 

   CONCLUSION

7. For the reasons given above the Tribunal finds that Mr Koh’s mother satisfies the requirements of cl.103.211 and cl.103.221 and that Mr Koh’s father is a member of her family unit. 

   DECISION

8. 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.

   John Billings
   Senior Member