PAN (Migration)

[2018] AATA 195

PAN (Migration) [2018] AATA 195 (29 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Cheng Pan

VISA APPLICANTS:  Mr Fudi Pan
Ms Liwen Zhang

CASE NUMBER:  1622231

DIBP REFERENCE(S):  2007/072845

MEMBER:Hugh Sanderson

DATE:29 January 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Parent (Migrant) (Class AX) visas.

Statement made on 29 January 2018 at 4:04pm

CATCHWORDS

Migration – Parent (Migrant) (Class AX) visa – Subclass 103 –  Review applicant – Visa applicant’s daughter – No longer a settled Australian citizen – Visa conditions not satisfied

LEGISLATION
Migration Act 1958, ss 65, 359AA

Migration Regulations 1994, r 1.03 Schedule 2 cls 103.211, 103.221

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 and Border Protection to refuse to grant the visa applicants Parent (Migrant) (Class AX) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 23 November 2007. The delegate refused to grant the visas on 26 October 2016 on the basis that cl.103.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not satisfied because the delegate found that at the time of the decision the visa applicants were not parents of a person who was a settled Australian citizen or other eligible sponsor.

   Background

3. The review applicant was born in China and first entered Australia in 2002. She was granted permanent residence in 2004 and became an Australian citizen in 2007. She has provided to the Department a copy of her Australian passport. The visa applicants are her parents. They are citizens of China. The application for the Parent visa was filed on 23 November 2007.

4. The Department wrote to the visa applicant on 16 June 2016 noting that one of the criteria that must be satisfied at the time of the decision was that the visa applicant is the parent of a person who is a settled Australian citizen, permanent resident or eligible New Zealand citizen. The delegate noted that the basis of the application was that the visa applicants were the parents of the review applicant. Her movement records showed that she had departed Australia on 4 April 2015 and not returned since then. As such, it appeared that she was no longer residing or settled in Australia. The visa applicant was invited to comment on or respond to this information. No response was received.

5. The delegate who considered the application was not satisfied that the review applicant was at the time of the decision a settled Australian citizen because she did not reside in Australia and had not provided any evidence of any significant ties to Australia. Accordingly, the delegate found that the applicants did not meet the criteria in cl.103.221 and refused the application.

   Information to the Tribunal

6. The movement records of the review applicant show that she has travelled out of Australia since the application was filed as follows:

   ·From 30 November 2007 to 14 October 2008 (10 months and 14 days);

   ·From 28 October 2008 to 8 October 2012 (3 years, 11 months and 10 days);

   ·From 19 October 2012 to 8 October 2013 (11 months and 19 days);

   ·From 25 December 2014 to 14 January 2015 (20 days); and

   ·From 4 April 2015 (2 years, and 8 months and continuing).

7. The review applicant provided a statement to the Tribunal dated 1 July 2017 where she made the following claims:

   ·The review applicant and her husband returned to Australia in October 2013 when their daughter was seven months old to provide her with an Australian education;

   ·The review applicant’s husband tried to find work in Melbourne for a year, but was not successful in doing so;

   ·The review applicant’s husband was offered a manager role in Suzhou, China, and so the review applicant left her job as a certified accountant and the family travelled to China to remain together;

   ·They made arrangements for the home they owned to be rented and to move their furniture and other personal effects into storage; and

   ·They have always planned to return to live in Australia in the first half of 2018.

8. The review applicant provided details of a property they own in Australia and arrangements for their home in Australia to be rented.

9. The review applicant attended a hearing, by telephone in China, on 23 January 2018.

10. The Tribunal commenced the hearing by explaining to the review applicant the process under s.359AA of the Act. The Tribunal explained to her that it would be putting information to her which would be the reason, or a part of the reason, for affirming the decision under review. It would explain why this information was relevant and then invite the review applicant to comment on or respond to the information. If she required more time, she could request an adjournment.

11. The review applicant said that she and her husband had been living in China with their two daughters since April 2015. She said that she had been working as an accountant since October 2015. She was currently on maternity leave as she had just given birth to her second daughter and was due to return to work in March 2018. Her husband had been working in the semiconductor industry since April 2015.

12. The review applicant said that they did not own any property in China. They rented their home in which they were living. She said that she and her husband own two properties in Melbourne: an apartment which was purchased in October 2015 and a house in Melbourne which was purchased in 2014. Both these properties are rented and the review applicant pays tax on the income from the rental properties at a non-resident rate.

13. The Tribunal referred to the process under s.359AA of the Act set out above. The Tribunal referred to the review applicant’s movement records from the time that the visa application was made. This information was relevant as it indicated the applicant had spent the majority of all her time since then living overseas and that at the time of the decision she was not resident in Australia and had not been resident in Australia for a period of two years and eight months. This was relevant as it indicated that at the time of the decision the review applicant, as the child of the visa applicants, was not settled in Australia and she was not lawfully resident in Australia and had not been for a reasonable period lawfully resident in Australia.

14. The applicant set out information of her immigration history and her connections with Australia. She said that after marrying her husband in 2011 her husband was granted a Partner visa and lived in Australia for about a year, but could not find suitable work. He was then offered a position in China which he decided to accept. As the review applicant did not want their family to be separated she decided that she would travel with him. She said that this was the only reason why she was not living in Australia, and she and her husband planned to return to live in Australia in the future. She said that she considered herself a settled Australian resident.

15. The Tribunal noted that at the current time the review applicant and her family had been living in China and had not returned to Australia for a period of two years and eight months. This indicated that the review applicant was not currently resident in Australia and had not been resident in Australia for a reasonable period before this time. The review applicant repeated that she considered herself a settled Australian resident. She said that part of the problem was that the Department had not properly told her when a decision for the Parent visa would be made and so she could not make sure prior to then that she was resident in Australia.

16. After the hearing, the review applicant provided further submissions in documents to the Tribunal. She claimed that although ‘settled in Australia’ usually meant two years’ stay in Australia, there were compassionate or compelling circumstances to waive that requirement. She said that in order to protect her family she decided to leave temporarily to be with her husband and children in China. She said that she was an Australian citizen and, although she pays tax at a non-resident rate, she would prefer to pay tax as a resident but it would breach Australian tax law. She said that her company in Australia pays tax.

17. The applicant provided various documents including the following:

    ·Business activity statement (BAS) from the review applicant’s business, Growisa Pty Ltd;

    ·The annual company statement for Growisa Pty Ltd showing the registered office address being the agent’s address and the review applicant as one of the company officers, with her home address being her address in Shanghai;

    ·Accounts from the company’s accountant sent to the review applicant at her residence in Shanghai;

    ·Other company documents noting the review applicant’s residence in Shanghai; and

    ·Company tax return for the year ending June 2017 for Growisa Pty Ltd showing a net income for the year of $2,097.

    FINDINGS AND REASONS

18. 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, Cheng Pan, is the child of the visa applicant.

    Parent of a settled child

19. 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. This must also continue to be met at the time of the decision (cl.103.221). The issue before the Tribunal is whether, at the time of this decision, the visa applicant is a parent of a person (the review applicant) who is a settled Australian citizen.

20. The person upon whom the visa applicants rely to meet the criterion that they are a parent of a person who is a settled Australian citizen is the review applicant. At the time of the application, the review applicant was and had been living in Australia for a number of years and was settled in Australia. Accordingly, the criterion in cl.103.211 was met.

21. After the application was filed, the review applicant’s circumstances changed significantly. She got married and sponsored her husband for a Partner visa. Unfortunately, her husband was unable to find appropriate employment in Australia and, after being offered a position overseas, the review applicant and her husband left Australia in December 2014 to take up that job opportunity offered to the review applicant’s husband. Since then, they have only returned to Australia on one occasion for a period of less than three months.

22. The review applicant and her family are now resident in China. They have been living in the same rented accommodation since April 2015. Both the review applicant and her husband have paid employment in China. The review applicant is currently on maternity leave but this ends in March 2018 and her employer expects her to return to her work after that date.

23. The review applicant and her husband do not own any significant assets in China. They own two properties in Australia, a house and an apartment. Both these properties are rented out. The income earned on these properties requires the review applicant to pay tax in Australia. This is paid at a non-resident rate. Although the applicant owns these properties, there is little continuing personal involvement in these properties which would indicate that the review applicant’s resident in Australia.

24. The review applicant provided evidence of a company, Growisa Pty Ltd, which she controls and is based in Australia. The fact that the review applicant had a controlling interest in this business was not raised by the review applicant during the hearing. The company disclosed a net income for the year ending 30 June 2017 of $2,097. All the company records provided by the review applicant to the Tribunal state that she resides in Shanghai. There is no information which would indicate the review applicant is actively involved in the operation of the business in Australia or that any action she takes in respect of the business is not carried out by her agent in Australia while she continues to reside in China. The documents provided indicate she has continuing interests in Australia; however they do not support a finding that since 2014 the applicant has ever resided in Australia.

25. The Tribunal accepts that the review applicant and her family plan to return to Australia at some time in the future; however, the issue before the Tribunal is whether at the time of this decision the review applicant is resident in Australia and has been for a reasonable time. Since December 2014, a period of in excess of three years, the review applicant has only spent two months and 21 days in Australia. She has not returned to Australia since April 2015, a period of more than two years and eight months. The review applicant may have felt she had no option but to return to China to be with her husband when he found work there and still considers herself a settled Australian citizen; however, this does not overcome the fact that she has not lived on a permanent basis as a resident in Australia since 2014 or even visited Australia since 2015. The fact that she intends to return to Australia to live at some time in the future, even if it is hoped to be in the not too distant future, indicates that at the time of the decision she is not resident in Australia. Even if she were to return to Australia today, she would not have been resident in Australia for a reasonable period at the time of the decision and would not, therefore, meet the definition of a settled Australian citizen.

26. The Tribunal has considered the reason provided by the review applicant as to why she does not reside in Australia. It was argued that in order to keep her family together, as her husband had obtained work in China, she was required to leave Australia to be with him. All families must make difficult decisions and compromises when considering how they should best lead their lives. This includes making decisions to move from one country to another for the sake of work or better job opportunities. The fact is that the review applicant and her family made a decision to reside in China in 2014 as this provided the best job opportunity for the review applicant’s husband. The Tribunal is not satisfied that this reason or any of the circumstances as to why the review applicant is now residing in China provides a compelling reason when considering whether the review applicant has been resident in Australia for a reasonable period at the time of the decision. The fact is that she the applicant does not currently reside in Australia and has not resided in Australia since 2014. She and her family have been since 2014 resident in China.

27. The review applicant argued that the Department had not given her adequate advice as to when a decision would be made in respect of the Parent visa application so that she could have ensured that her parents would meet the criteria. This is an irrelevant consideration for the Tribunal. The Tribunal must consider the situation of the parties at the time of the decision. The Tribunal has considered all the circumstances of the review applicant, including the reasons why the review applicant departed Australia to reside in China in December 2014 with her husband and child, why she and her family continue to reside in China, the current living arrangements of the review applicant and her family, the investments they have in Australia including the review applicant’s company, their stated intention to return to Australia, and the fact that the review applicant feels in herself that she is a settled Australian.

28. The Tribunal finds that at the time of this decision the review applicant is resident in China and has been so since 2014. Accordingly, the Tribunal finds that at the time of the decision the applicant is not and has not been lawfully resident in Australia for a reasonable period and therefore does not meet the definition of a settled Australian citizen in reg.1.03.

29. The Tribunal finds that, at the time of application, the visa applicant was a parent of a person who is a settled Australian citizen and therefore satisfies cl.103.211. The Tribunal finds that at the time of decision the visa applicant does not continue to satisfy the criterion in cl.103.211 and therefore does not satisfy cl.103.221.

30. For the reasons given above the Tribunal finds the visa applicants do not satisfy the requirements of cl.103.221.

    DECISION

31. The Tribunal affirms the decisions not to grant the visa applicants Parent (Migrant) (Class AX) visas.

    Hugh Sanderson
    Member