TRAN (Migration)

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.