TRAN (Migration) - [2019] AATA 5661

TRAN (Migration) [2019] AATA 5661 (17 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Tuan Vo Tran
VISA APPLICANTS:  Mrs Phoi Nhon Tran
Mr Phung Thuy Tran
CASE NUMBER:  1730793
DIBP REFERENCE(S):  OSF2014/091304
MEMBER:David Barker
DATE:17 September 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Migrant) (Class CA) Subclass 143 visas.

Statement made on 17 September 2019 at 12:16pm

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – lawfully resident in Australia for a reasonable period – sponsor was not settled in Australia – frequent and lengthy periods outside Australia – assisting family business in Vietnam – further dependent children in household register – Resident Return visa refused – review applicant’s son in Vietnam – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65
Migration Regulations 1994, Schedule 2 cls 143.211, 143.221; r 1.03
CASES
Drake v MIEA (1979) 24 ALR 577
Hafza v Director-General of Social Security (1985) 60 ALR 674
Huang v MIMIA [2007] FMCA 720
Naiker v MIMA [2002] FCA 888
Re Taylor (1992) 37 FCR 194
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 October 2017 to refuse to grant the visa applicants a Contributory Parent (Migrant) (Class CA) Subclass 143 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 16 December 2014. The delegate refused to grant the visa on the basis that the sponsor of the visa applicants was not settled in Australia and therefore the visa applicants did not meet the criteria in cl.143.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The Tribunal wrote to the review applicant, care of his representative on 8 May 2019, inviting him to appear before the Tribunal at a hearing on 5 June 2019. On 3 June 2019, the Tribunal was asked to postpone the hearing for an unspecified period as the sponsor was in Vietnam waiting for a resident return visa allowing him to return to Australia. The Tribunal did not consent to this request and indicated the sponsor could participate in the hearing by telephone from Vietnam. On 4 June 2019, the Tribunal received a hearing response from the review applicant providing details about how to contact him by telephone at his family home in Vietnam.
The review applicant appeared before the Tribunal on 5 June 2019 by telephone to give evidence and present arguments. The Tribunal also received oral evidence from his parents, the first and second named visa applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The visa applicants are nationals of Vietnam. In their application, they stated that they…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: TRAN (Migration) [2019] AATA 5661
Case: [2019] AATA 5661
Decision Date: 17 September 2019

CaseChat Overview and Summary

This matter concerned an application for Contributory Parent (Migrant) (Class CA) visas, Subclass 143, by certain visa applicants who were sponsored by their son, an Australian permanent resident. The primary issue before the Tribunal was whether the sponsor met the criterion of being "lawfully resident in Australia for a reasonable period" at the time of the visa application and at the time of the decision, as required by clauses 143.211 and 143.221 of the Migration Regulations.

The Tribunal was required to determine the meaning of "settled" as defined in regulation 1.03, which requires a person to be "lawfully resident in Australia for a reasonable period." The Tribunal considered the case law, including *Naiker v MIMA* [2002] FCA 888, which established that factors beyond mere length of stay are relevant to determining if a person has been resident for a reasonable period. The Tribunal also examined the concept of "residence," drawing on *Hafza v Director-General of Social Security* (1985) 60 ALR 674, which identified two elements: physical presence and the intention to treat a place as home. The Tribunal noted that a person can be simultaneously resident in more than one place, as observed in *Re Taylor* (1992) 37 FCR 194, even if not physically present in all locations at once.

The Tribunal found that while the sponsor held a visa permitting lawful return to Australia and had not departed since 27 July 2019, the evidence indicated frequent and lengthy periods spent outside Australia assisting a family business in Vietnam and the presence of further dependent children in a household register in Vietnam. These circumstances suggested that the sponsor's residence in Australia was not for a reasonable period, and therefore the sponsor was not "settled" in Australia as required by the regulations.

Consequently, as the visa applicants did not meet the criteria in clause 143.211, the Tribunal affirmed the decision not to grant the Subclass 143 visas.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The movement records indicate the review applicant returned to Australia on 27 July 2019. Also included with this email was evidence of the Subclass 155 visa granted to the review applicant, a letter regarding an employment offer for the review applicant in Australia and further copies of evidence previously provided with the review application.CONSIDERATION OF CLAIMS AND EVIDENCE The primary criteria for the grant of a Contributory Parent visa require that at the time of application: cl.143.211, and at the time of decision: cl.143.221, the visa applicant be a ‘parent’ of a settled Australian citizen or permanent resident, or a settled eligible New Zealand citizen. The Tribunal is satisfied the applicant currently holds a visa which lawfully permitted him to return to Australia on 27 July 2019. There is no indication in his movement records that he has departed from Australia since that date. The visa applicants were sponsored by their son (the review applicant) who is an Australian permanent resident. The term ‘settled’ is defined at r.1.03 as follows:settled, in relation to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means lawfully resident in Australia for a reasonable period. Tribunal has considered the evidence before it in support of the applicants’ claims. 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. 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 Wilcox J 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. In Hafza, Justice Wilcox 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.At first blush it may seem strange to say that a person can be ordinarily resident in more than one country at the same time; but on closer analysis it is not. Plainly you cannot be physically present in more than one place at the same time. But the lifestyles of people vary greatly. Some people in the ordinary pursuit of their lives regularly or customarily live in more than one place, each of which has an element of permanence about it and is not merely a place of casual or intermittent resort.[1] (1992) 37 FCR 194.

Decision

Reasons for decision

As the visa applicants do not meet the criteria in cl.143.211, the decision to refuse the application must be affirmed.DECISION The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Migrant) (Class CA) Subclass 143 visas. David BarkerMember

Ratio Decidendi

Legal Principle Established

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