Tao (Migration)

This matter concerned an appeal by the visa applicants against the refusal of their Parent (Migrant) (Class AX) visas, Subclass 103. The sponsor, who was the son of the visa applicants, had become an Australian citizen in April 2003. The dispute centred on whether the sponsor had been "lawfully resident" in Australia for a "reasonable period" as required by the migration regulations. The sponsor and his wife had spent significant periods offshore, particularly in the two years preceding the visa application, to care for the wife's ailing grandparents and mother in China.

The primary legal issue before the court was to determine whether the sponsor met the criterion of being "lawfully resident" in Australia for a "reasonable period" at the time of the visa application. This involved interpreting the meaning of "settled" in the context of the migration regulations and considering whether the sponsor's circumstances, including his extensive time spent overseas and the reasons for it, satisfied this requirement. The court also had to consider whether any compassionate or compelling circumstances warranted a departure from the usual interpretation of the residency requirement.

The court affirmed the decision to refuse the visa applications. It was found that the visa applicants did not meet the criteria stipulated in clause 103.211 of the migration regulations. While acknowledging that a shorter period of lawful residence might be considered in cases with compassionate and compelling circumstances, or where an Australian citizen, having resided overseas for a lengthy period, returns to Australia and wishes to sponsor family members but is precluded by the "two-year" policy requirement, the court found that the sponsor's circumstances did not meet these exceptions. The evidence indicated that the sponsor had not resided in Australia for a sufficient period to be considered "settled" in accordance with the regulations. Consequently, the Tribunal affirmed the decisions not to grant the visa applicants their Parent (Migrant) (Class AX) visas.