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

1. 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).

2. 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).

3. 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.

4. 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.

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

   Background

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

7. The review applicant is a national of Vietnam and is 35 years old.  He first came to Australia in 2010 on a Subclass 309 Provisional Partner visa and became a permanent resident of Australian in April 2012, when he was granted a Subclass 100 Residential Partner visa.   He divorced his wife in July 2014.  There were no children from that union, but he has a child, born in December 2014 with his current partner.  His current partner and child live in Vietnam.

8. Since November 2013, the review applicant has travelled out of Australia as follows:

   ·For eight days from 15 May 2011 to 23 May 2011 (returning to Australia for one year, eight months and five days);

   • For 24 days from 28 January 2013 to 21 February 2013 (returning to Australia for one month and 30 days);
   • For 36 days from 20 April 2013 to 26 May 2013 (returning to Australia for three months and 28 days);
   • For one month and three days from 23 September 2013 to 26 October 2013 (returning to Australia for four days);
   • For six months and 17 days from 1 November 2013 to 18 May 2014 (returning to Australia for 30 days);

   ·For nine months and 15 days from 17 June 2014 to 5 April 2015 (returning to Australia for 10 days);

   ·For 11 months and 21 days from 11 April 2015 to 1 April 2016 (returning to Australia for five days);

   ·For 11 months and 26 days from 6 April 2016 to 1 April 2017 (returning to Australia for 26 days);

   ·For five months and 12 days from 27 April 2017 to 9 October 2017 (returning to Australia for 24 days);

   ·For 33 days from 2 November 2017 to 5 December 2017 (returning to Australia for one year and 20 days).

   ·From 25 December 2018 to the 27 July  2019.

9. When assessing the application, the delegate noted that the review applicant had been absent from Australia for significant periods, which could lead to him not being considered to be settled in Australia. The delegate also noted that there appeared to be three more children within the visa applicants’ family unit than stated in the application for the Contributory Parent visa. The delegate sent a natural justice letter to the visa applicants’ representative inviting comment on these concerns. In response, the Department of Immigration (the Department) received documents regarding the second named visa applicant’s business in Vietnam, documents regarding the review applicant’s employment and temporary stay registration in Vietnam and a written statement responding to the concerns raised in the natural justice letter.  The translation of this written statement states in part:

   On 21 September 2017, we received a notice from the immigration department relating to our application, detailed as follows:

   - Our son's living time in Australia.
   - Three children in our family household book.

   We are grateful that the visa officer allows us to explain those problems. We sincerely present as below:

   1.       About my son's living time in Australia.
   Since 2010, Vo has chosen Australia as a country to live and settle.
   After coming to Australia, Vo has traveled to Vietnam to visit us many times. We own [name provided] trading-production company limited established from 2003, therefore anytime when being in Vietnam, Vo helped us to manage the company. After a period living with Vo's previous wife, [name provided]. Late 2013, many conflicts and arguments occurred between them, and they decided to live separately to consider whether their relationship could be repaired? During this time, Vo traveled to Vietnam from 1/11/2013 to 17/5/2014, it was time for him to consider about his marriage relationship. This time, Vo stayed at our house at [address provided] Ho Chi Minh city. Vo helped us a lot in company business. We are very confident having our son to help in business.

   On 17/5/2014, Vo departed Vietnam for Australia to talk with his ex-wife. But unluckily, after a period living separately, their conflicts still couldn't be handled. They officially decided to apply for a divorce in late May 2014. The divorce has been valid since 02/08/2014. On 17 June 2014, our son came back to Vietnam, Vo kept helping us in company business. Our son was a very capable person in work, therefore we discussed and decided to sign a labour contract with him from 01 January 2015. He became a chief of the sales department and he took responsibilities to manage the sales department. One month after that, Vo asked us for permission to let him move out of home to live in another place for more convenience in routine activities.

   Vo does not intend to live in Vietnam for long time. Our son chooses Australia for settlement. Recently, Vo has been in Vietnam just for purpose to help us in business during time we are waiting for a decision of our visa application. My wife and I have decided to choose Australia as a country for our family to live and settle.

   Recently, Vo has been in Vietnam just to complete the work that he takes responsibilities. That why he spent a lot time in Vietnam even more than time in Australia. But our son and our family still decide to choose Australia as a country to live and settle. At present time, our company business is temporary arranged. We found a trustful person to work for us, therefore my son decided to leave Vietnam and return to Australia to live.

   2.       About three children in our family household book:
   There are 3 children, that are: [names and dates of birth provided], they are not our dependent children. They have own parents listed as follows:
   [name provided]: is the son of [name provided] and [name provided]. Tran Phoi Nhon is [name provided]’s aunt.
   [name provided]: is the daughter of [names provided], she is a granddaughter of Tran Phoi Nhon's best friend that is [name provided]
   [name provided]: is the son of [names provided]. Tran Phoi Nhon is [name provided]'s aunt.

   Reason why the three children having name in our family household book: because our house's address is at [address provided] Ho Chi Minh city. Near our house, there is Minh Dao primary school. This is a very good school in our city, many parents wish their children could study here. However, according to the school's regulations, there are only children who have name in family household book of district 5 could study here. That's why we agreed to help those children and allowed their name to be in our family household book.

   Although the names of these three children are in our household book to attend Minh Dao primary school, but these three children are not our dependants in finance as well as in spirit.
   These children are not our adopted children and we are not their adoptive parents. We guarantee that we are not persons who take responsibilities to take care of, nourish these children, and they are not our dependants.

   The hearing

   Evidence of the review applicant

10. At the start of the hearing, the Tribunal explained that the issue before the Tribunal was whether the review applicant was, both at the time of the application and at the time of the decision, a settled Australian permanent resident. 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.

11. The review applicant told the Tribunal that he most recently departed from Australia on 25 December 2018 to travel and spend five or six weeks with his family in Vietnam.  He said that he did not notice the expiry date on his previous visa and that when he tried to check-in at the airport to return to Australia, on or around 7 February 2019, he was told his visa had expired.  He said that he then applied, with the assistance of his agent, for a Subclass 155 Resident Return visa. He said he had yet to find out the outcome of that visa application.

12. The Tribunal told the applicant that information from the Department indicated he was notified on 16 May 2019 that his application for the Subclass 155 Resident Return visa was refused. The Tribunal informed the applicant as this was information that he had not provided that was unfavourable to his parents’ claim for the Contributory Parent visas this information would need, in the interest of procedural fairness, to be put to him at a further point in the hearing.

13. As to his general migration history, the review applicant confirmed that he became a permanent resident in Australia when he was granted a Subclass 100 Partner visa in 2012.  He said he divorced the woman who sponsored him in relation to his Subclass 309 and Subclass 100 Partner visas in July 2014. He said that there were no children from that relationship.

14. The Tribunal noted the delegate had refused his parents’ application for the Contributory Parent visas because they were not satisfied that he, as their child and sponsor, could be regarded as a settled permanent resident of Australia. The Tribunal asked the review applicant about his movements between Australia in Vietnam.  In response, the review applicant said he returned to Australia from Vietnam on 1 April 2017 and then went back to Vietnam on 27 April 2017.  He said he returned to Australia on 9 October 2017 and then returned to Vietnam on 2 November 2017, before returning to Australia on 5 December 2017.  He said he then departed from Australia again on 25 December 2018, intending to visit his family in Vietnam for around four weeks and that in effect he has been trapped there since, as he was unable to return to Australia.

15. As to his circumstances in Australia, the review applicant said that at the time he departed Australia in December 2018, he worked in a business, which restores second hand furniture.  He said he polishes furniture before it is repainted and that he had worked in that job for around 12 months. He said he is unsure if he would still have the job, as he has now been away from the job for much longer than he had entitlement to from annual leave. He said he has also done some work lawn mowing on weekends. The review applicant said he owns a car in Australia, worth around $15,000.  He said that apart from that he has no other financial or property assets in Australia. He said he has no relatives in Australia, apart from his ex-wife with whom he does not maintain contact. He said that in the 12-month period prior to his departure from Australia in December 2018 he was sharing rental accommodation with a friend.

16. In relation to his circumstances in Vietnam, the review applicant’s oral evidence focussed upon his more recent circumstances.  He said that he is living with his parents in the family home, which is where he usually stays when he visits Vietnam.  He said that he is assisting his parents in the family business, which manufactures plastic bags. The review applicant said that he is in a relationship with a woman in Vietnam but they have not formally married.  He said they have a son who was born in December 2014.

17. As to his understanding of his parent’s intentions, in applying for the Contributory Parent visas in December 2014, the review applicant said that when his parents can come to Australia the plan is that they would open a business like a coffee shop or an Asian food shop.  He said that because of his current circumstances, he hopes to be given a visa allowing him to return to Australia, so that his parents can join him.

18. The Tribunal invited the review applicant to comment on some factors that raise concern that he has stronger ties to Vietnam than he has maintained or developed in Australia. In doing so the Tribunal noted that: the applicant has a partner and child living in Vietnam; he works in an established family business in Vietnam, whilst in Australia he was employed in unskilled factory work and doing some lawnmowing; he has no real estate or other significant assets in Australia; and, up until the delegate’s decision in October 2017, he had spent far more time, since his parents applied for the Contributory Parent visas, in Vietnam than in Australia. In response, the review applicant said that he really wants to stay in Australia and that he has only been delayed from returning to Australia because his Resident Return visa was cancelled.

    Evidence of the primary visa applicant, Mrs Phoi Nhon Tran

19. Mrs Tran told the Tribunal that she would like the Australian government to allow her son to return to Australia so that when she comes to Australia, she will transfer her money to Australia and open a business in Australia.

    Response of the review applicant to his mother’s evidence

20. The review applicant told the Tribunal that he wants Australia to show some compassion and allow him to return to Australia.

    Evidence of the second named visa applicant, Mr Phung Hung Thuy Tran

21. Mr Tran told the Tribunal that the review applicant has spent more time in Vietnam then in Australia, as he is the only son and he assists in the running of the family business.  He said that he wants his son to stay permanently in Australia so that he and his wife can go there and transfer their business and assets to Australia.  He said that he and his wife have no current assets in Australia.

    Response of the review applicant to his father’s evidence

22. The review applicant said that he wants to be able to return to Australia so that he can sponsor his parents.

    Information put to the review applicant pursuant to s.359AA and s359A of the Act

23. The Tribunal explained to the review applicant that it would be putting information to him pursuant to s.359AA of the Act. The Tribunal explained that this information would be the reason, or a part of the reason, for affirming the decision under review and that it would explain why this information was relevant and invite the review applicant to comment on or respond to this information. The Tribunal explained that if he required more time to comment on or respond to the information, he could ask for an adjournment. The particulars of information put to the applicant were details of his movement records and departmental relation regarding his current visa status.

24. The review applicant requested time to talk to his representative before commenting on this information and the Tribunal consented to this request.  In the interest of providing the review applicant a meaningful opportunity to respond, the Tribunal sent him a s.359A letter following the hearing specifying the relevant particulars of information, which were as follows:

    The particulars of the information are that your movement records indicate:

    ·you departed from Australia on 25 December 2018 and have not returned;

    ·you departed Australia on 2 November 2017 and returned on 5 December 2017;

    ·you departed Australia on 27 April 2017 and returned on 9 October 2017;

    ·you departed Australia on 6 April 2016 and returned on 1 April 2017;

    ·you departed Australia on 11 April 2015 and returned on 1 April 2016;

    ·you departed Australia on 17 June 2014 and returned on 5 April 2015;

    ·you departed Australia on 1 November 2013 and returned on 18 May 2014;

    ·you departed Australia on 23 September 2013 and returned on 26 October 2013;

    ·you departed Australia on 20 April 2013 and returned on 26 May 2013;

    ·you departed Australia on 28 January 2013 and returned on 21 February 2013;

    ·you departed Australia on 15 May 2011 and returned on 23 May 2011;

    This information is relevant as the limited time you have had in Australia since 2013, when considered in conjunction with your evidence during the hearing of your respective ties to Australia and to Vietnam, raises concern you were not either at the time your parents applied for the Subclass 143 Contributory Parent visa, or at the present time, usually resident in Australia.  

    Department of Home Affairs records indicate you do not at present have a visa permitting you to return to Australia, which gives rise to some concern as to whether you could be regarded as lawfully resident in Australia, which is a further requirement for the grant of the Subclass 143 Contributory Parent visa.

    Department of Home Affairs records indicate that on 16 May 2019 you were notified that the Department of Home Affairs determined that you do not meet a required criteria for the grant of a Subclass 155 Resident Return visa, as you were not lawfully present in Australia for a period of, or periods that total, more than two years over the period of five years immediately before your application for a Subclass 155 Resident Return visa.

    If the Tribunal relies on some all of this information and determines you were not lawfully resident in Australia at either the time your parents applied for their visas, or at the time of this decision, it may find you are not a settled Australian permanent resident for the purpose of cl.143.211 and / or cl.143.221 of the Migration Regulations 1994. If the Tribunal made this finding it will affirm the decision to refuse your parent’s application for the Subclass 143 Contributory Parent visas.

1. The s.359A letter asked the review applicant to provide a response by 19 June 2019 and on 18 June 2019 the Tribunal received a response, which included a:

   ·    Written submission from the representative;

   ·    Copy of the review applicant’s driver’s license;

   ·    Copy of the review applicant’s car insurance policy;

   ·    Copy of the review applicant’s  ATO 2018 notice of assessment;

   ·    Copy of the review applicant’s  labour contract in relation to his parents’ business;

   ·    Letter from the applicant’s Australian employer;

   ·    Copy of the review applicant’s son’s birth certificate; and

   ·    Copy of the first and second named visa applicant’s business and taxation record.

2. The representative’s written submission states in part:

   ·The review applicant Mr Than Vo Tian has always regarded Australia as home since migrating to Australia in 2010.

   ·The main reason that he was away from Australia for a long period since the end of 2013 was because of his parents' business situation. His parents needed him to manage their million dollar business [name provided] in production of plastic bags. Please find attached Mr. Tuan Vo Tran's employment contract in January 2015

   ·Another reason was because during the periods he was in Vietnam, he got involved in a romance relationship with his current de facto spouse. As a result their son, [name provided] was born on 07/12/2014. However, his de facto spouse, [name provided] did not wish to migrate to Australia nor consented for their son to migrate to Australia because she still had family members in Vietnam and did not wish to leave them behind at the time. Mr. Titan Vo Than advises that he has been working on this issue very hard and has now convinced his de facto spouse to migrate to live with him in Australia.

   ·After helping his parents in his business, he returned to live and settle in Australia on 05 December 2017. He found a job working for Online Polishers located at [address provided]. He worked there from about March 2018 to December 2018 before he traveled to Vietnam. He advises that he also worked for [name provided] in lawn mowing cutting trees and gardening works on the weekends. Please see attached a copy of Mr. Than Jo Trait's Income Tax Returns — Notice of Assessment for year 2018.

   ·Mr Tuan Vo Trail has been trying to convince the Department to grant him the Resident Return Entry Visa, so that he could return to Australia and to enable him to continue with his sponsorship application for his parents to migrate to Australia

   ·Mr Than and his parents (the visa applicants) have decided Australia to be their

   home, where they live and retire. His parents (the visa applicants) will bring/ transfer all their assets and monies (total over 5 million Australian dollars) into Australia when migrating. His parents will not need to receive any financial assistance from the Australian government

   ·Substantial ties benefit to Australia,

   §  Mr. Tran does not have any substantial business ties in Australia.

   §  Mr. Tran does not have any substantial cultural ties in Australia.

   §  Mr. Tran has substantial employment ties in Australia. Please see attached a letter of confirmation of his employment written and signed by his employer, [name provided]

   §  Mr. Tran has substantial personal ties in Australia,

   oHe owns an automobile vehicle, a 2000 BMW that he purchased recently in 2018 a few months before he travelled to Vietnam.

   oHe has regarded Australia as home since migrating to Australia in 2010. He has resided, worked and paid taxes in Australia for approximately 44 months since arriving in Australia.

   oHe intends to live, has family and children in Australia permanently. That was why he has applied to sponsor his parents (the visa applicants) to come to live in Australia permanently under the Contributory Parent visa subclass 143. The File number is [number provided]; and the application is now before the Administrative Appeals Tribunal — Migration & Refugee Division with Case number: 1730793.

   The review applicant, Mr. Tuan Vo Tran has instructed me to advise you that he has always thought Australia as his home, where he will be spending his life in. Mr. Yuan Vo Tran (the review applicant) and his parents (the visa applicants) ask You / the Tribunal to hold on to the making of a decision on this case as Mr. Yuan Vo Tran (the review applicant) is still waiting for the Department to grant him the RRV to enable him to return to Australia. His RRV application will be finalized soon

3. As the Department’s records were not clear as to whether the review applicant had lodged a further application for a return Resident Visa and due to this being a matter of relevance to the issues arising in the current review, the Tribunal took the request to ‘hold on to the making of a decision’ to be an adjournment request and considered it reasonable to delay a decision until the issue of the review applicant’s Subclass 155 visa application became clear.

4. On 29 July 2019 the Tribunal received an email from the review applicant’s representative stating:

   ·the review applicant was granted a Subclass 155 Return Resident visa on 27 July 2019;

   ·his de facto partner has agreed to migrate to Australia along with their child;

   ·he is in the process of sponsoring his de facto partner for a Partner visa;

   ·he has had on offer of employment in the  lawn mowing and gardening business where he has previously  worked on weekends.

5. 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

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. ‘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. The Tribunal will ordinarily apply lawful government policy unless there are cogent reasons against its application[4]. 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].

    [4] Drake v MIEA (1979) 24 ALR 577 per Bowen CJ & Deane J at 590, Re Drake and MIEA (No. 2) (1979) 2 ALD 634 per Brennan J at 645.

13. 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.  In the circumstances of this matter, the Tribunal notes the review applicant is a permanent resident of Australia and not an Australian citizen.

14. The Tribunal has considered the circumstances of the review applicant at the time of the application.  On 16 December 2014, the review applicant held a Subclass 100 Residential Partner visa, having being granted that visa in April 2012, more than two years prior to when his parents applied for the Subclass 143 Contributory Parent visas.  He was at the time of application offshore from Australia, having departed on 17 June 2014, some five months and 29 days before the Subclass 143 visa applications were lodged. 

15. The review applicant had departed from Australia on five occasions over the two years prior to the time of application.  He was cumulatively off shore from Australia for one year, three months and 16 days in his home country, where he worked in an established management role in the family business, resided in the family home with his parents and had a child with the woman who is his current de facto partner.  There is no evidence before the Tribunal that would establish the review applicant developed or maintained any business interests, property or other financial assets in Australia prior to the time of application, or that once he divorced his previous spouse in July 2014, that he had any relatives in Australia. The strength of his connection to his home country over a reasonable period prior to his parents applying for the visa is in quite stark contrast to this. Whilst the Tribunal acknowledges the review applicant may have rented accommodation during brief periods he was in Australia after the breakdown of his previous spousal relationship, the Tribunal is not satisfied this was indicative of a situation where he was maintaining households in two different countries, such that his circumstances in Australia had a sufficient ‘element of permanence about it’[5] for it not to be more appropriately regarded as a place of ‘casual or intermittent resort[6]’. 

    [5] Hafza v Director-General of Social Security (1985) 60 ALR 674

    [6] Hafza v Director-General of Social Security (1985) 60 ALR 674

16. A ‘Factum’ prepared by the review applicant on 5 November 2014, claims the review applicant has ‘lived and settled in Australia since arrival’.  This was in March 2010. However, this claim is not consistent with his movement records, as discussed elsewhere in this decision.   Given the child from his current relationship was born some five months after he formally divorced his previous spouse, the Tribunal is satisfied that any significant connection he had to his previous spouse ceased some time prior to their formal divorce. There is no claim to the contrary and this finding is consistent with information contained in the primary visa applicant’s written statement, which whilst not referring to the review applicant’s child and new relationship in Vietnam, does state the review applicant returned to Vietnam in November 2013, following a significant period of difficulty in his previous marriage.  He only spent 30 days in Australia from that time until his parents applied for the Contributory Parent visas.

17. Whilst he was a lawful non-citizen in Australia during periods, cumulatively amounting to eight months and 13 days over the two-year period prior to his parents’ application for the Subclass 143 visas, the Tribunal is not satisfied the review applicant was lawfully resident in Australia for a reasonable period.  Whilst he and his parents claim they wish to reside together in Australia and his parents state that they wish to transfer financial assets here to open a business, the Tribunal is not satisfied these factors demonstrate the review applicant was lawfully resident in Australia for a reasonable period leading up to the time of application.  It is not relevant to consider whether factors influencing the lack of time he spent in Australia in the immediate lead up to the visa applications constitute compassionate and compelling circumstances as this consideration is restricted to an Australian citizen and not a permanent resident.

18. The Tribunal has considered the evidence of the applicant’s more recent circumstances, including but not limited to that pertaining to his discussions with his current de facto partner about her seeking a partner visa, his employment offer, his ongoing wish for his parents to come to Australia and the reasons his recent return to Australia was delayed, particularly in so far as they are relevant to the time of application circumstances.  However, for the reasons outlined above, the Tribunal is not satisfied that at the time of the application the review applicant was lawfully resident in Australia for a reasonable period and was not a settled permanent resident in Australia as defined in reg.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.143.211(a).

19. Cl.143.221 requires that a visa applicant continues [emphasis added] to satisfy the criterion in cl.143.211. As the Tribunal has found the visa applicants do not satisfy cl.143.211, they cannot continue to meet this criterion at the time of decision. The Tribunal has therefore not further considered the time of decision criterion.

20. 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.

21. As the visa applicants do not meet the criteria in cl.143.211, the decision to refuse the application must be affirmed.

    DECISION

22. The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Migrant) (Class CA) Subclass 143 visas.

    David Barker
    Member