Shan (Migration)

[2024] AATA 863

Shan (Migration) [2024] AATA 863 (11 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ting Shan

VISA APPLICANTS:  Mr Junyan Shan
Mrs Rongqian Yao

REPRESENTATIVE:  Mr Paul Xue

CASE NUMBER:  2000143

HOME AFFAIRS REFERENCE(S):          2009/070799

MEMBER:Kira Raif

DATE:11 April 2024

PLACE OF DECISION:  Sydney

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 Regulation.

Statement made on 11 April 2024 at 1:11pm

CATCHWORDS

MIGRATION – Parent (Migrant) (Class AX) visa – Subclass 103 (Parent) – parents of a settled Australian citizen – balance of family test – settled or usually resident in Australia – support to family in China – time of application criterion – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cls 103.211, 103.221; r 1.03

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 Home Affairs to refuse to grant the visa applicants Parent (Migrant) (Class AX) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 31 July 2009. The delegate refused to grant the visas on 1 November 2019 on the basis that cl 103.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) was not satisfied because the delegate was not satisfied the visa applicants were parents of a settled Australian citizen. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

   Relevant law

4. 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. 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. 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.

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. ‘Parent’ is defined in s 5(1) of the Act. The definition of ‘settled’ in reg 1.03 of the Regulations requires that the person be lawfully resident in Australia for a reasonable period.

7. At the time of decision, the applicant must continue to satisfy the criterion in cl 103.211: cl 103.221.

   Are visa applicants sponsored by a settled Australian citizen?

8. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicants made the application for the visas in July 2009. The sponsor, Ting Shan is listed as their only child.

9. The delegate noted that the sponsor departed Australia in January 2011 and did not return until May 2014 before departing again in June 2014. The sponsor did not return to Australia at the time of the delegate’s decision. The delegate was not satisfied that the sponsor was settled or usually resident in Australia and the delegate concluded that the visa applicants did not meet cl. 103.211.

10. The Tribunal is satisfied that the visa applicants are parents of the sponsor. The review applicant provided to the Tribunal a copy of his passport and the Tribunal accepts that he is an Australian citizen. The issue is whether he is a settled Australian citizen.

11. The review applicant provided additional evidence to the Tribunal concerning his settlement. Mr Shan provided a statement stating that he travelled to Australia to complete his PhD and was eventually granted permanent residence and citizenship. However, his mother in law was diagnosed with cancer, so his family returned to China to care for her and she passed away in 2012. Mr Shan states that he himself was later diagnosed with cancer and had undergone an operation and his parents cared for him. Mr Shan states that they always intended to return to Australia but he cannot leave his elderly parents in China. Mr Shan had outlined the hardship that the family would experience if they cannot live in Australia. Mr Shan had enclosed a number of photographs, his more recent rental agreements and evidence of activities in Australia, his medical records, evidence of his son’s school enrolment, statements in support and other material.

12. The delegate found that the sponsor was not settled in Australia because he had been living outside of Australia since 2011. However, the Tribunal notes that the settlement requirement in cl. 103.211 is a requirement that must be met at the time of application, rather than the time of decision. The evidence before the Tribunal indicates that the sponsor has been lawfully resident in Australia since 2002, first holding a Student visa, then a permanent Skilled visa and then acquiring Australian citizenship. Although the sponsor made several trips overseas, he was predominantly living in Australia since 2002. By the time the application was made in 2009, the sponsor had been lawfully resident in Australia for nine years and in the Tribunal’s view, that  is a reasonable period. The Tribunal is satisfied the visa applicants meet cl. 103.211.

13. The Tribunal has also considered whether this requirement is met at the time of decision. The sponsor has spent considerable time overseas since 2011 and in his various submissions to the Tribunal he explained the reasons for his departure and decision to remain in China. However, the review applicant provided evidence that he had returned to Australia. There are before the Tribunal the family’s lease agreements, evidence of the child’s school enrolment, evidence of their interactions with government and other agencies. Importantly, the review applicant’s movement records show that he has been resident in Australia since June 2020 with only a few months spent overseas in that period. A residence in Australia of nearly four years is, in the Tribunal’s view, a reasonable period.

14. The Tribunal is satisfied that when the application was made, the visa applicants were parents of a person who is a settled Australian citizen. The Tribunal is satisfied that the sponsor continues to be a settled Australian citizen at the time of this decision and that the requirements in cl. 103.211 continue to be met. The Tribunal finds that the visa applicants meet cl. 103.221.

    CONCLUSIONS

15. For the reasons given above the Tribunal finds the visa applicants satisfy the requirements of cl 103.211 and cl. 103.221.

    DECISION

16. 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.

    Kira Raif
    Senior Member