Tao (Migration)

[2021] AATA 1125

Tao (Migration) [2021] AATA 1125 (19 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tao Li

VISA APPLICANTS:  Mr Baoshan Li
Mrs Liyan Song

CASE NUMBER:  1931124

DIBP REFERENCE(S):  2016/072809 OSF2016/072809

MEMBER:David Barker

DATE:19 April 2021

PLACE OF DECISION:  Sydney

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

Statement made on 19 April 2021 at 8:20am

CATCHWORDS
MIGRATION – Parent (Migrant) (Class AX) visa – Subclass 103 (Parent) – sponsor settled in Australia – lawfully resident for a reasonable period – sponsor and wife have spent much more time offshore since gaining permanent residence, especially in two-year period before application made – returned to home country to care for wife’s grandparents and mother – hold Australian passports and Chinese temporary visitor visas – worked in Australia but not in China – bought and sold apartment in Australia – Australian citizen child born in China – unable to return to Australia because of COVID-19 travel restrictions – credible evidence – ‘settled’ – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulation 1994 (Cth), r 1.03, Schedule 2, cls 103.211, 103.221

CASES
Gauthiez v MIEA (1994) 53 FCR 512
Hafza v Director-General of Social Security (1985) 60 ALR 674
Huang v MIMIA [2007] FMCA 720
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
Naiker v MIMA [2002] FCA 888
Re Taylor (1992) 37 FCR 194
Scargill v MIMIA (2003) 129 FCR 259

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue before the Tribunal is whether, at the time of this decision, the visa applicants are parents of a person (the review applicant) who is a settled Australian citizen.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made 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).

3. The visa applicants applied for the visas on 30 May 2016. The delegate refused to grant the visas on 28 August 2019 on the basis that cl.103.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not satisfied because the sponsor of the visa applicants was not settled in Australia.

4. The visa applicant’s son (the review applicant and sponsor) appeared before the Tribunal on 11 January 2021 by teleconference from China to give evidence and present arguments. The visa applicants declined the opportunity to give evidence during the hearing. The Tribunal was assisted by an interpreter in the Mandarin and English languages.

5. The review applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

7. The visa applicants are nationals of China. In their application, they stated that they have one child, Tao Li, who is their sponsor in relation to their visa applications and the review applicant in relation to the matter currently before the Tribunal.

8. The review applicant (the sponsor) was born in China and first entered Australia in 2002 on a Subclass 571 Student visa. He became a permanent resident of Australian in August 2011, when he was granted a Subclass 887 Skilled regional visa. The sponsor was granted Australian citizenship in April 2013. The sponsor’s wife has a similar migration history, being that she was born in China, came to Australia to study, before becoming a permanent resident and then an Australian citizen.

9. The sponsor departed Australia on 1 May 2015 and returned with his wife to China. They have not returned to Australia since that date. They had a child in 2018, who is an Australian citizen by descent.

10. When assessing the application, the delegate noted that the sponsor departed from Australia on 1 May 2015 and had not, by the time of the delegate’s decision in August 2019, returned to Australia. The sponsor confirmed at hearing that he remains offshore from Australia, in China. The delegate noted that, as at 28 August 2019, the sponsor has spent 542 days in Australia and 2,397 days cumulatively offshore, since the grant of his permanent residence visa on 11 August 2011. The delegate sent a natural justice letter to the visa applicant’s nominated email address in June 2018 inviting further evidence in relation to whether the sponsor could be regarded as ‘settled’ in Australia. The delegate noted that no response was received to this request.

    RELEVANT LAW

11. 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.

12. 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.

13. 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.

14. 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. The definition of ‘settled’ in r.1.03 of the Regulations requires that the person be lawfully resident in Australia for a reasonable period. At the time of decision, the visa applicant must continue to satisfy the criterion in cl.103.211; cl.103.221.

15. ‘Parent’ is defined in s.5(1) of the Act as:

    without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in s.5CA.

16. The term ‘settled’ is defined in r.1.03 of the Migration Regulations 1994 (the Regulations). In relation to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, ‘settled’ means ‘lawfully resident in Australia for a reasonable period’. When considering the definition of ‘settled’ in r.1.03, there are two issues arising for the Tribunal’s consideration: whether the individual is ‘lawfully resident in Australia’ and whether this has been ‘for a reasonable period’.

17. 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. The Court 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 in that case 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.

18. The term “lawfully resident” is not defined in the legislation. Whilst the meaning of residence will depend on the particular statutory context, the courts have generally interpreted the concept of residence to mean where a person lives or resides. In Hafza v Director-General of Social Security (1985) 60 ALR 674 at 680 the Court explained the concept of residence as follows:

    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 for ever.

19. In Hafza, the Court observed that a person may be simultaneously resident in one or more place. Similarly, in Re Taylor[1] the Federal Court observed that, while a person may not be physically present in two places, a person may have more than one place of ordinary residence. Whilst that case dealt with the concept of “ordinary residence”, rather than “lawfully resident”, in finding that the respondent did not immediately cease to be ordinarily resident in Australia on the date of his departure from Australia, Lockhart J observed:

    A person may have two places of residence; for example, a city flat and a country house. He may regularly live in each. He cannot be physically present in both at the same time, but he may be resident (or ordinarily resident) in each at the same time. People may come and go from the place in which they are ordinarily resident in a large variety of circumstances and on various occasions. It is always a question of fact and degree.

    [1] (1992) 37 FCR 194.

20. ‘The term ‘reasonable period’ is also undefined in the legislation. The term ‘reasonable period’ was considered in Huang v MIMIA[2] in the context of the definition of ‘aged dependent relative’ in r.1.03. 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.[3] The Tribunal may have regard to lawful government policy, and any other matter that the Tribunal considers relevant. Departmental guidelines (PAM3) 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.

    [2] Huang v MIMIA [2007] FMCA 720 (Cameron FM, 16 May 2007).

    [3] Huang v MIMIA [2007] FMCA 720 (Cameron FM, 16 May 2007) at [44].

21. A shorter period of lawful residence may be considered for Australian citizens where there are compassionate and compelling circumstances or the Australian citizen, having resided overseas for a lengthy period, has returned to Australia and wishes to sponsor family members, but may be precluded from doing so due to the ‘two year’ policy requirement. That shorter period should be at least three months’ residence as at the time of application.

    CLAIMS AND EVIDENCE

22. A statement provided by the sponsor in association with the visa application stated in part:

    I am writing this letter to explain my situation.

    I came to study in Australia as early as 2002, three years later, Xiaolei LIU came to Australia to study as well. In Australia, we fell in love and got married. In August 2011 we got the visas of permanent residence, then became Australian citizens in April 2003.[4]

    We both love Australia very much, we love everything here, fresh air, delicious food, friendly people, democratic government and so on. We made a firm decision to live our rest of lives in Australia. So we planned to buy an apartment in NSW and saw a lot in different suburbs. Then we put down a deposit on the apartment in Green Square. When we were immersed in the joyance, a grievous news came.

    My elder uncle-in-law (my wife’s elder uncle) was diagnosed with advanced liver cancer, so we went to China to see him immediately. Soon he died in June of 2013. It was only over one year from the death of my younger uncle-in-law.

    My grandma-in-law had three children, two sons and one daughter. Influenced by the Chinese traditional ideas, the misconception that men are superior to women dominates her mind. Because of the huge stimulation from two sons’ death, my grandma-in-law was taken ill suddenly. She was out of danger after the emergency treatment, however, she suffered from stroke, that means she cannot move the right side of body at all. The stroke had also made her dysphagia, incontinence daily. In addition that the effect of diabetes mellitus earlier has resulted in her kidney failure. She has to confine to bed everyday, so she needs to be taken care of by families all the time. My mother-in-law has to look after my grandma‑in‑law, because my mother-in-law is the. only living child of my grandma-in-law.

    My mother-in-law divorced when my wife was a litter girl. And she only has one child who is my wife. With the help of my grandma-in-law, my mother-in-law brought up my wife, so they are very affectionate to each other. Because of the great changes of the family, and over working from taking care of my grandma-in-law, those have caused both physical and mental problem of my mother-in-law, such as high blood pressure, insomnia, dreaminess, headache, anxiety, exhaustion, hyperglycemia, and heart disease. She was getting thinner and thinner. Therefore, my wife and I decided to stay in China temporarily. We have given support to her in action. In addition, my grandma-in-law is over 80 years’ old. Her body and spirit are very poor. We also want to accompany her at the end of her life.

    The above is my situation. That is why I live in China now temporarily.

    My wife and I are sure that we will go back to Australia in the near year, because we have been used to Australian life. Our friends are almost all in Australia. We love Australia very very much.

    Hopelly my parents’ visa applications can be approved, because we also want to be with them when they need and repay the ex-rearing parents.

    [4] 2013? – apparent typo not corrected.

23. Prior to the hearing, the Tribunal received documents and submissions from the sponsor. The submission received from the representative states in part:

    SUPPORTING MATERIALS
    2. We attach the following documents:

    1 – Sponsor Timeline statement
    2 – Inpatient medical record
    3 – Relationship certificates
    4 – Sponsor Passport
    5 – Domain Rent Apartments Search
    6 – Seek Jobs
    7 – Sponsor Australian Citizenship certificate
    8 – Sponsor Child Citizenship certificate
    9 – Sponsor Marriage Certificate
    10 – Sponsor Wife Australian Passport
    11 – Sponsor Child Australian Passport

    12 – Friends Support Letters

    We are instructed to submit that the review applicant should be regarded as a settled Australian citizen, the review applicant made the following specific points:

    • The review applicant and his wife went back to China to support their family members.
    • The review applicant, his wife and their child are all Australian citizens and only hold Australian passports.

    • The review applicant, his wife and their child all hold Chinese temporary visitor visas;

    We are instructed to submit that being settled and resident for a reasonable period of time should be viewed over a longer time frame, from 2002, when the review applicant came to Australia for study and not purely from when he left Australia in 2015 for a temporary period offshore.

    We are instructed to submit that the review applicant was at no stage legally regarded as settled in China and as he is not stateless, he must be settled somewhere else and that place is Australia.

    We are instructed to submit that at the time of 103 visa application in 2016 the sponsor lawfully resided in Australia from 2002 to 2015. We are further to submit that on the basis of this cumulative evidence, the review applicant was, at the time his parents applied for the visa in 2015, a settled Australian citizen within the meaning of r.1.03.

    We are instructed to submit that when determining the question of whether a person has been resident in Australia for a reasonable period, what constitutes a ‘reasonable period’ for the purpose of the definition of ‘settled’ may also depend on the steps the person in question has taken to establish his or her residence in Australia.

    We are instructed to submit that the review applicant now intends to re-establish a household in Australia with his wife and his child. The relocation plan is being delayed because of COVID-19 pandemic. We are further to submit that there is an strong intention the review applicant will return to Australia on an ongoing basis.

    We are instructed to submit that the review applicant is actively seeking appropriate employment and residency back in Australia.

    Conclusion

    We are instructed to submit that the review applicant is a settled Australian citizen, and we are further instructed to request the Tribunal to remit the refusal decision.

24. The timeline provided by the sponsor outlined the following circumstances:

    2002

    ·     Tao LI (Tao) came to study in Australia.

    2005

    ·     Xiaolei LIU (Xiao) came to study in Australia.

    2008

    ·     Tao and Xiao got married in Sydney. We both love Australia very much, that's why we chose Sydney as registered place of marriage.

    2011

    ·     We got the visa of permanent residence.

    2013

    ·     We became Australian citizens, and decided to live our rest of lives in Australia. China does not allow dual nationality. Our nationality is Australian, so we have to apply Chinese visa to visit our families.

    ·     Xiao's elder uncle was diagnosed with advanced liver cancer, so we went to China to see him. Soon he died. It was only over one year from the death of Xiao's younger uncle. The huge stimulation caused the physical and mental problems of Xiao's grandparents, especially Xiao' grandmother. Soon Xiao's mother got ill.

    2014

    ·     We employed a carer to help Xiao's mother to take care of Xiao's grandparents. We came back to Australia in April. But sick people are always eccentric. Xiao's grandmother fired that carer just one month later. Xiao's mother had to look after Xiao's grandparents by herself. Xiao's grandmother got ill again soon. We had to go to China in July.

    2015

    ·     We came back to Australia in April. We started our Australian life again. We realized that we should have Chinese visa, just in case that Xiao's mother need us. We can go at any time. So we applied China visa since we were back to Australia. Unfortunately the same thing happened again, Xiao's mother called us to help her as soon as possible. We went to China again soon. From then on, We never stopped to find a right person to take care of Xiao's grandparents. We always hope to come back to Australia as early as possible.

    2017

    ·     Xiao got pregnant. Because Xiao's over 30 years old and got married for many years, and it's very hard to get pregnant, all our families were very concerned about Xiao and hoped the baby was born in China. Tao's mother would help to take care of our baby.

    2018

    ·     Our son was born. We were all very happy, meanwhile we were very busy. We didn't know how to look after a baby. We kept learning from Tao's mother. We also need to spend time to take care of Xiao's grandparents.

    2019

    ·     One day, Xiao's grandmother may know our situation or her condition may become more worse. Unexpectedly she accepted a carer and mistook the carer for her sister. Therefore We don't need to stay there for the whole day. We planned to come back to Australia after Chinese Spring festival of 2020.

    2020 Chinese Spring festival

    ·     Novel coronavirus outbreak. Firstly, that's very difficult to buy air tickets. Secondly Australia issued no entry policy and quarantine policy. Then our parents were very worry about us to spend such a long time in the airplane. It's very dangerous. They also worried that the child is too young to be quarantined.

    2020 the end of 2020

    ·     We are going to get vaccination. We are also active looking for a place to live and childcare in Sydney via Internet. We decide to come back to Australia in March of 2021. We miss Australia and friends. We need work. Our child need go to CC for study and live in his country. It will help his language, thought and to adapt to Australian environment. This time we must come back to Australia.

    The hearing

    Evidence of the sponsor

25. At the start of the hearing, the Tribunal explained that an important issue before the Tribunal was whether the sponsor was, both at the time of the application and at the time of the decision, a settled Australian citizen. This required, both at the time of lodgement of his parents’ visa applications and at the time of the decision, for him to be lawfully resident in Australia for a reasonable period.

26. In relation to his circumstances since he has been in China, the applicant said neither he nor his wife have had any paid employment, as they have not had work rights on the visitor visa that has permitted them to remain in China since May 2015. He said they have been supported in China by their families.

1. As to employment he held in Australia prior to departing in May 2015, the sponsor said he worked in a warehouse, where he was hired as a casual labourer and was subsequently promoted to a role involving bookkeeping and managing the overall warehouse. He said that he also worked as a delivery driver and in all had had four different employers. He said that his wife had studied to become a registered nurse but had difficulty finding work in this vocational field and so had worked in clothing and gift shops.

2. The Tribunal noted a reference in submissions provided by the sponsor to a Green Square apartment investment and sought clarification of the present status of this potential property asset. The sponsor gave evidence that he and his wife relinquished this investment in 2016, as they had difficulty servicing the mortgage as they needed what savings they had accumulated to support themselves in China. He said that they plan to invest again when they return to Australia and gain further employment. In response to a question from the Tribunal, the sponsor gave evidence that neither he nor his wife hold any other assets of any significance in Australia. He said that they also have no assets of their own in China, but that his family own a factory and also have other residential property assets and savings.

3. The Tribunal noted that support letters provided by two friends of the sponsor contained identical content and raise a concern that this may diminish the weight given to these documents as they do not appear to be the unique views of the two people involved. In response, the sponsor said that a lawyer had helped draft the letters and this may account for the similarity in their content but that his friends are definitely aware that it is the intention of him and his wife to return and have a stable life in Australia with their family.

4. The Tribunal invited the sponsor to comment on whether he would appropriately be regarded to be lawfully resident in Australia for a reasonable period at the time his parents applied for the Subclass 103 visa in May 2016. In doing so, the Tribunal noted that Departmental policy usually deems a reasonable period to be two years but that it is however important to consider the particular circumstances present in a case. The Tribunal noted that it would appear that the sponsor had only been in Australia for 89 days during a two year period prior to the time of application and that a short period may be considered if compelling and compassionate circumstances provide a reasonable explanation for a sponsor’s absence and they had at the time of application returned to Australia. In relation to this latter issue, the Tribunal noted that the sponsor had not been onshore in Australia for around 13 months at the time his parents applied for the visas. In response, the sponsor made the following points:

   ·     either his or his wife’s parents could have applied for parent visas at any time since he or his wife were granted permanent residency in Australia but that he and his wife had wished to wait until they had established a stable living situation in Australia before their parents retired and they could sponsor their parents to join them in Australia;

   ·     when making decisions about the timing of these applications they bore in mind their parents’ age, other relatives who were living in China and an awareness the visa application process would take a considerable period of time;

   ·     they had not initially intended to lodge the application while he and his wife were offshore from Australia but their return to Australia was delayed because of the need for his wife to assist with the care of her grandmother, who was elderly and had developed significant medical problems. Her grandfather also has significant health problems and does not leave his bed;

   ·     he and his wife shared what is quite a common value in China, which is that parents or grandparents as they age and become infirm should be able to rely on care from family members rather than outside services;

   ·     they had only anticipated the involvement of his wife in caring for her grandmother would last for a few months and they did not expect to be stuck in China for as long as they have been. He said there was an unstable situation beyond their initial expectations;

   ·     his wife has no siblings and whilst her mother is alive, she was unable to provide the required level of support to her parents and needed help from the sponsor’s wife.

5. The Tribunal acknowledged the information provided by the sponsor in relation to his wife’s care responsibilities and asked him why he had elected to not himself return to Australia at any time since May 2015. In response, the sponsor gave evidence that his wife and her mother were two women trying to cope with the situation and that he wanted to support them. He said that he and his wife have a close relationship and they make better decisions when they stick together. He said that due to his family’s secure financial situation, he did not need to return to Australia to work and so was able to remain with his wife and support her efforts to look after her grandparents.

6. As to the present circumstances, the sponsor gave evidence that he and his wife and their child have not been able to return to Australia due to the disruption caused by the coronavirus pandemic. He said that their intention is to return after they are vaccinated in China. He said that his plan is to run a real estate business in Australia with a friend and that he and his wife definitely intend for their future to be in Australia. He said that in the meantime, his parents can live in China quite well, as they are financially secure and his elder sister can support them. He said that it is however his responsibility as the only son to look after his parents in the future and that his wish is for them to bring their assets to Australia and join his family here.

   FINDINGS AND REASONS

7. The Tribunal has considered the evidence before it in support of the applicants’ claims. In doing so, it was satisfied the sponsor provided oral evidence at hearing that was straightforward, reasonable and sincere. His oral evidence was consistent with the written statements, declarations and other documentary evidence provided with the visa and review applications. The Tribunal is satisfied that the sponsor is a witness of truth and that evidence provided by him is reliable.

8. The visa application was made on the basis that the visa applicants are the parents of Li Tao who is an Australian citizen (‘the child’). The Tribunal accepts that Li Tao is the biological child of the visa applicants, Mr Baoshan Li and Mrs Liyan Song, and that he has sponsored his parents in relation to their applications for the Subclass 103 Parent visa.

9. The Tribunal accepts that the sponsor became a permanent resident in Australia in 2011 and a citizen of Australia in 2013. Accordingly, there is no suggestion he has not been lawfully residing in Australia when he has been onshore since those times, or indeed at any time since his initial arrival in 2002.

10. 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.

11. The Tribunal is satisfied that consideration of the migration history of the sponsor and his wife, in conjunction with the oral evidence and submissions in relation to their migration history, demonstrate that they have an intention to live in Australia over the longer term. They have sought Australian citizenship at the point they were entitled to do so and have taken action to have their child gain Australian citizenship by descent. Their action in becoming Australian citizens required them relinquishing their Chinese citizenship and the Tribunal accepts this is a significant step they would have taken without due consideration of the implications of such an action. One such consequence is that when returning to the country of their birth, they do so as people requiring a visa permitting them to travel to and remain in China for specified periods of time. This is their current situation and has been so since May 2015. The Tribunal has taken these factors into account when forming the view that the sponsor’s intent is to live in Australia, along with his family. The Tribunal notes that consideration of this factor is relevant to one of the two elements discussed in Hafza.

12. With respect to the other element, the physical presence of a person in a particular place, at the time of his parents’ visa applications on 30 May 2016, the applicant was offshore from Australia, having departed on 1 May 2015, some 13 months before the Subclass 103 visa applications were lodged. The representative submits that consideration of a reasonable period should take into account a longer period than is contemplated by Departmental policy, and in the circumstances of this case it should take into account the quantum period the applicant has spent onshore since between 2002 and 2015. The Tribunal acknowledges the sponsor has spent a considerable period of time in Australia, commencing in 2002. However, the tribunal does consider it relevant that over the period from 1 May 2013 to 1 May 2015, that is a two year period leading up to the time of application, the sponsor’s movement records indicate he was onshore for a total of only 87 days. At the time of the delegate’s decision in August 2019, their review of the sponsor’s movements indicated he had spent 542 days in Australia and cumulatively 2,397 days offshore since he was granted permanent residency in August 2011. This is consistent with the timeline provided by the sponsor, who has given evidence he was in China during the remaining periods.

13. In considering whether the applicant was lawfully resident in Australia, and if so whether it was for a reasonable period leading up to the time of application, the Tribunal is mindful of Departmental policy, but this is not binding on the Tribunal and it is the legislative provision that the Tribunal applies, with regard to all the facts and circumstances of the case.

14. The concept of ‘residence’ was considered by the High Court in Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (Koitaki's case). The Court made the following observation regarding residence:

    The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other place of abode. ^[5]

    [5] Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (1941) 64 CLR 241 at 249.

15. The representative submits that the sponsor was at no stage legally regarded as settled in China, and as he is not ‘stateless’ he must be settled somewhere else, and that place is Australia. The Tribunal does not accept this submission as it is not persuaded ‘statelessness’ equates to ‘settled’ when considering required criteria for the grant of a Subclass 103 visa. The sponsor is an Australian citizen, he is clearly not stateless. This is not however the determinative issue when considering whether he was ‘settled’. Whilst giving support to the contention he has an intention to reside in Australia, his Australian citizenship is not a determining factor in deciding whether he is usually resident in Australia[6]. This is because ‘citizenship and residence are distinct concepts although, of course, in common experience most people usually reside in the country of which they have citizenship’[7].

    [6] Gauthiez v MIEA (1994) 53 FCR 512; Scargill v MIMIA (2003) 129 FCR 259.

    [7] Gauthiez v MIEA (1994) 53 FCR 512

16. The Tribunal acknowledges that since he relinquished his Chinese citizenship, when granted Australian Citizenship in 2013, the applicant has been upon temporary visas whilst in China.  However, the Tribunal is not satisfied that this is a determinative issue with respect to where he is regarded as usually resident.  This is because, whilst a person’s immigration status may be relevant to considering whether they have an intention to reside in or treat a place as his home, it would be erroneous to regard holding a temporary visa as precluding a finding that a person usually resides In the country issuing that visa. This is because a person can be ‘usually resident’ in a place while holding a temporary visa permitting them to remain there.

17. The Tribunal accepts that the sponsor does not own residential property or other assets in China, or even have work rights there. It is however where he has slept, eaten and lived in a household for the majority of time since 2011.  The Tribunal accepts that the sponsor’s wife had reasonable reasons to be in China to support both her mother and maternal grandparents. The Tribunal acknowledges that it was reasonable for the sponsor to accompany his wife, and that due to his family’s financial circumstances in China and savings he and his wife had accumulated, he did not need to return to Australia to earn money so as to be able to financially support his wife whilst he attended to her familial responsibilities. Whilst the sponsor’s choices with regard to where he has spent his time may be reasonable, they are choices that he has made, and in the view of the Tribunal they are indicative of the strength of his connection to his family and the family of his wife in China, notwithstanding he, his wife and now his child hold Australian citizenship.  With respect to this issue, the Tribunal notes that the sponsor’s aspiration to acquire a property asset in Australia did not eventuate and that he diverted savings that may have gone towards such a purchase to support his immediate family in China.

18. The Tribunal accepts that a person may have more than one place of ordinary residence and that their residence does not cease at the point they depart from Australia. However, in the circumstances of this case, where the sponsor does not own a residence in Australia, has not maintained a household here, or hold other business or financial assets in Australia, I am not satisfied there is an indication he has maintained households in two locations.  In forming this view, the Tribunal has given some weight to the sponsor and his wife’s employment history in Australia. The weight given to this factor was however limited as it was not claimed that the jobs held here were in their chosen careers, or that employers have held positions open for them to take up if they return to Australia. The Tribunal acknowledges that the birth of a child is a significant change in a young couple’s circumstances. This was however an event that occurred significantly after the time of application.

19. The Tribunal accepts that the coronavirus pandemic may have disrupted any plans the sponsor had to return to Australia and that he was provided a reasonable reason for not now doing so until he and his immediate family have received vaccinations. However, whilst neither the Act nor Regulations could have anticipated the circumstances the world has confronted over the past year, I am not persuaded the pandemic considerations by the sponsor adequately explain the choices he has made since May 2015 with respect to his place of residence.

20. The Tribunal accepts that the sponsor and his family plan to return to Australia at some time in the future; however, the issue before the Tribunal is whether at the time of application and at the time of this decision the sponsor was and is resident in Australia and had been for a reasonable time. The Tribunal is not satisfied the factors discussed above demonstrate the sponsor was lawfully resident in Australia for a reasonable period.

21. For the reasons outlined above, whilst finding the sponsor was a credible witness and presented as a man committed to his family’s welfare, the Tribunal is not satisfied that at the time of the application the sponsor was lawfully resident in Australia for a reasonable period and was not a settled Australian citizen as defined in r.1.03. Accordingly, the Tribunal finds that the visa applicants were not the parent of a settled Australian citizen or Australian permanent resident or eligible New Zealand citizen and therefore did not meet the criteria in cl.103.211.

22. Clause 103.221 requires that a visa applicant continues [emphasis added] to satisfy the criterion in cl.103.211. As the Tribunal has found the visa applicants do not satisfy cl.103.211, they cannot continue to meet this criterion at the time of decision. The Tribunal has therefore not further considered the time of decision criterion.

23. The visa applicants at the time of the application were not the holders of any other visa and were not present in Australia and therefore did not meet any of the alternate criteria.

    CONCLUSIONS

24. As the visa applicants do not meet the criteria in cl.103.211, the decision to refuse the application must be affirmed.

    DECISION

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

    David Barker
    Member