Wang (Migration)

[2020] AATA 3337

Wang (Migration) [2020] AATA 3337 (30 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Anni Wang

VISA APPLICANTS:  Mrs Hong Zhu
Mr Yudong Wang

CASE NUMBER:  1816240

DIBP REFERENCE(S):  BCC2016/4406464

MEMBER:Meena Sripathy

DATE:30 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 30 June 2020 at 11:54am

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – parent of ‘settled’ Australian citizen or permanent resident – sponsor not residing in Australia – no response to s 359A invitation – not entitled to appear before the Tribunal – be lawfully resident in Australia for a ‘reasonable period’ – prolonged and continued absence – intention to permanently return to Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 143.211, 143.221

CASES
Hafza v Director General of Social Security (1985) 6 FCR 444; [1985] FCA 164
Hasran v MIAC [2010] FCAFC 40
Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (1941) 64 CLR 241
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 6 April 2018 to refuse to grant the visa applicants Contributory Parent (Migrant) (Class CA) Subclass 143 visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 20 December 2016. The delegate refused to grant the visas on the basis that the primary visa applicant, Hong Zhu, does not meet the requirements of cl.143.211 because the delegate was not satisfied that, at time of application, she was a parent of a settled Australian citizen or a settled Australian permanent resident. 

3. The sponsor (review applicant) applied for review of the decision on 4 June 2018.

   RELEVANT LAW

4. At the time the visa application was lodged, the Contributory Parent (Migrant) (Class CA) contained Subclass 143. The criteria for a Subclass 143 visa are set out in Part 143 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.

5. The primary criteria requires 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.143.211.  The definition of ‘settled’ in r.1.03 of the Regulations requires that the person be lawfully resident in Australia for a reasonable period. 

6. At the time of decision, the visa applicant must continue to satisfy the criterion in cl.143.211: cl.143.221.

7. The issue in the present case is whether either of the visa applicants are the parent of a settled Australian citizen or permanent resident.

   CLAIMS AND EVIDENCE

8. The visa applicants are a married couple and the parents of the sponsor (the review applicant), who is an Australian citizen.

9. Departmental records indicate that the review applicant departed Australia in 27 October 2015 and had spent only 300 days in Australia in the two years prior to lodgement of the application. On 5 February 2018 the Department wrote to the visa applicant’s authorised recipient (the sponsor) to invite comment on this information. No response was received to this invitation to comment and on 6 April 2018 the delegate refused the application on the basis of finding that the sponsor was not considered ‘settled’ at time of application and time of decision. 

10. The review applicant provided information and evidence to the Tribunal in support of the review application.  In response to the delegate’s reasons for decision she explained that she had been in Australia from 2007 to 2015, a period of around eight years.  She completed her undergraduate degree at ANU and worked in Australia.  She was granted Australian citizenship in 2014 and gave birth to a baby in October 2014 and her mother stayed in Australia for six months to help her look after the baby. She and her husband took their child back to China in October 2015. The main reasons for returning was for her husband to run his business and for them to be with their families to look after their child. They plan to bring their child back to Australia in the next two years and settle in Australia because their daughter will go to school here. Her mother retired from her job in China in December 2015 and they plan for her parents to come to Australia to live with them. She stated that they applied for a non-Contributory Parent visa in 2014, and later withdrew this and lodged the present application in November 2016, with the plan that by the time it was processed her parents can return to Australia with them to settle. She did not know that the sponsor not residing in Australia would be a problem for the application. She provided an explanation for the non response to the Department’s invitation to comment letter, being that it was Chinese Lunar New Year and her child was sick.  She wants the Tribunal to reconsider the application.

11. The following supporting documents were also provided to the Tribunal: front page of a contact for sale relating to a property in Aranda, ACT dated 11 July 2013, naming the primary visa applicant as purchaser; front page of a contract for sale of a property in Strathfield, NSW (undated) naming review applicant as purchaser, statements of CBA and  NAB accounts in review applicant’s name for periods 2017- 2018, showing substantial balances; statements of St George account in the visa applicants’ names showing substantial balances as at February and March 2018.

12. On 16 October 2018 the review applicant informed the Tribunal that she will be travelling to Australia on 22 November 2018 with her child and her mother, they will stay for around three months, and she hopes this will be helpful to her application.

13. On 4 June 2020 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting the review applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The Tribunal gave particulars of information obtained from departmental movement records that she departed Australia on 27 October 2015 and since then has only returned once from 23 November 2018 to 1 March 2019 and that she is currently outside Australia and explained the consequence of the Tribunal relying on this information to its findings about whether she is or is not a ‘settled’ Australia citizen or Australian permanent resident at time of application or time of decision. The review applicant was also invited to provide information, evidence and submissions addressing the issue of whether she has been lawfully resident in Australia for a reasonable period as at the time of application.

14. The invitation was sent to the last address provided in connection with the review and advised that, if the information or comments were not provided in writing by 18 June 2020, the Tribunal may make a decision on the review without taking further steps to obtain the information or comments and the review applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

15. No response was received from the review applicant by the date provided in the invitations.  As the review applicant has not provided the information or comments within the prescribed period and did not request, nor was granted, any extension of time. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

16. On 23 June 2020, an officer of the Tribunal wrote to the applicant again, to advise her that because she had not responded to the earlier invitation, she had lost her entitlement to a hearing, and the Tribunal would be proceeding to make a decision on the material before it.  It would allow her until the end of the week to provide any further information.

17. On 25 June 2020, the applicant provided a response to the Tribunal’s invitations and supporting documents.  The Tribunal has considered this information in making its decision.

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

    FINDINGS AND REASONS

19. The visa application was made on the basis that the visa applicants are the parents of Anni Wang who is an Australian citizen (‘the child’). Notarial certificates evidencing the couple’s marriage certificate and the review applicant’s birth certificate are included in the Department file. On the basis of this evidence, the Tribunal finds the visa applicants are a married couple and the sponsor (review applicant) is the child of the visa applicants.

20. On the basis of information in the application forms and departmental records, the Tribunal accepts that the sponsor (review applicant) first arrived in Australia in 2007, was granted a permanent visa in January 2013 and has been an Australian citizen since 2014.  Department movement records indicate she departed Australia on 27 October 2015.  Since then she has returned to Australia once, from November 2018 to March 2019.  Prior to this, between 2007 and 2015 the review applicant’s movement records indicate she was mostly in Australia, with trips outside the country once or twice a year for one to two months.  At the time of lodgement of the review application the review applicant provided evidence of a property purchase (undated) by the review applicant and two bank accounts containing substantial balances up to May 2018, and a statements of bank accounts in her parents’ names up to February and March 2018. 

21. The definition of ‘settled’ in r.1.03 of the Regulations requires that the person be lawfully resident in Australia for a reasonable period.  The term ‘reasonable period’ is not further defined in the Act or Regulations.  Mindful that it is not binding on the Tribunal, it is noted that departmental policy provides that two years is generally considered to be a reasonable period.  

22. The term ‘resident’ is also not defined in the legislation and can depend on the context in which the term appears. In the context of the definition of ‘settled’ in r.1.03 it has been held that it should be interpreted to mean ‘ordinarily’, ‘habitually’ or ‘usually’ resident.[1]  In common law 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) as being determined by reference to where one eats and sleeps and has his/her settled or usual abode.[2]   In Hafza v Director General of Social Security [3] Justice Wilcox held that the concept of 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.’ His Honour then extracted the statement from Koitaki's case above and went on to make the following observations:

    Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place, even involuntarily (see Inland Revenue Commissioners v Lysaght [1928] AC 234 at 248 and Keil v Keil [1947] VLR 383) a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place - Levene v Inland Revenue Commissioners [1928] AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 at 149 - together with an intention to return to that place and an attitude that that place remains ‘home’ (see Norman v Norman (1969) 16 FLR 231 at 236). It is important to observe, firstly, that a person may simultaneously be a resident in more than one place — see the facts of Lysaght and the reference by Williams J to ‘a home or homes’ — and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as ‘home’, a change of intention may be decisive of the question whether residence in a particular place has been maintained.[4]

    [1] Naiker v MIMIA [2002] FCA 888 (Hely J, 18 July 2002) at [27], citing Re S (2000) 142 ACTR 12, 14.

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

    [3] (1985) 6 FCR 444; [1985] FCA 164.

    [4] Hafza v Director General of Social Security (1985) 6 FCR 444 at [449]–[450].

23. In the present case, the Tribunal sought from the review applicant further information and evidence to support that she has maintained residency in Australia despite her absence from the country at time of application and at the present time, including evidence of property, financial, family, social, business or ties. 

24. In her late response to the Tribunal on 25 June 2020, the applicant explained that she returned to China in October 2015 for the main reason of her husband’s establishment of an IT company there and to spend time with their families who were all living there. Their intention was to live in China until 2020 when their daughter would start school in Australia. Her mother retired in December 2015 and her father was due to retire in 2021 and their plan was to come to Australia. The applicant told the Tribunal in her letter that she has three properties in Australia, two are rented out and one is in construction.  She has continuously maintained a reasonable amount of savings in Australian banks and is paying off home loans here. Her parents have also maintained bank accounts in Australia.  She provided statements from all of these accounts. The applicant explained that she, together with her daughter and mother, returned to Australia in November 2018 to renew her Australian bank cards, drivers’ licence, etc. In January 2019, her mother sold the Canberra property that she had bought in 2014, and they bought a new property in NSW in anticipation of their plan to live in Australia permanently. They registered their daughter for school at Radford College in Canberra. They had planned to return to Australia in February 2020 and had bought the tickets. However due to Covid 19, they postponed the plan. The applicant stated that she and her husband studied in Australia and intend to return here to live permanently as do her parents.  They want their daughter to have an Australian education and intend to bring her to start her first year in 2021.

25. The Tribunal has considered all of the above submissions and evidence before it.  It accepts that the review applicant resided lawfully in Australia from 2007 until her departure in October 2015, a period of almost eight years. She maintained lawful status throughout this period, obtained permanent residency and subsequently citizenship. Evidence is before the Tribunal that she owns property and has maintained bank accounts with substantial funds in Australia.

26. In Hafza[5] Justice Wilcox observed that a person may be simultaneously resident in one or more place. Similarly, in Re Taylor[6] 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. Lockhart J, in that case, observed,  ‘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… 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.’

    [5] Re: Maha Hafza And: Director-General Of Social Security (1985) 6 FCR 444; [1985] FCA 164.

    [6] Re Taylor (1992) 37 FCR 194.

27. The Tribunal has considered whether the evidence before it supports a finding that, at time of application, in December 2016, the applicant was ‘lawfully resident in Australia for a reasonable period’ despite her physical absence at that point in time and whether the evidence supports a finding that she continues to be ‘lawfully resident in Australia’ now.  

28. The Tribunal accepts that the applicant resided lawfully and continuously in Australia from 2007 to October 2015 and this is a reasonable period.  She departed Australia in October 2015 with an intention to stay there for several years and she remains outside Australia to this date.  As provided in her letter of 25 June 2020, she returned to China to support her husband’s establishment of a business there and to spend time with her family who all lived there. She explained that her parents applied for Parent visas in 2016 in anticipation of coming here to live with the applicant and her family.  

29. However in the period between October 2015 and now, the applicant returned to Australia only once for a period of just over three months  She explained that she planned to return to Australia permanently in February 2020 but this was postponed due to the Covid 19 situation and she is now planning to return in 2021.  The Tribunal has considered this explanation, however, it is not satisfied that she was unable to return to Australia because of Covid 19 given that she and her daughter are Australian citizens.  It accepts that the Australian government made a decision to close its borders to China in February 2020, due to Covid 19, however there were and continue to be exceptions for Australian citizens and permanent residents[7] and therefore it does not accept that this of itself explains her change of plans to return this year, although it acknowledges the uncertainty and confusion that the circumstances of the pandemic would have had and continues to have on individuals and communities throughout the world. Quite apart from this, the review applicant has been on notice since the delegate’s decision that her absence from Australia was an issue in the context of this application.  While she returned for a period in 2018, she did not stay beyond March 2019.

    [7] Australia closes borders to infected China as Qantas suspends flights, 1 February 2020, The New Daily. >

    The Tribunal accepts that the applicant has maintained property and financial ties in Australia and has an intention to return here in future to live.  However, no evidence is before the Tribunal about her circumstances in China, including her financial and property assets held there.  The Tribunal accepts the review applicant’s evidence in her statements that she is an only child and her parents and in laws reside in China. She has provided no other evidence of family or social ties in Australia.  Had she by now returned to live here it may have been prepared to accept that in December 2016, the time of application, she was an Australian resident, in the sense that she had maintained a continuity of association and had an intention at that time to return here to make this her home.  However she has not in fact returned to resume residing here up to now, almost five years since she left Australia.  The Tribunal is not satisfied the evidence before it supports a conclusion that she continues to be residing in Australia within the common law meaning of the term ‘residence’ or that she can be said to have been residing here for a reasonable period. It finds her prolonged and continued absence with only one visit to Australia to renew her drivers’ licence and Medicare card, and maintenance of property and financial assets in Australia of itself is not sufficient to support that she is lawfully resident in Australia for a reasonable period now. The Tribunal has taken into consideration the unprecedented and uncertain circumstances of the Covid 19 pandemic, however there is no evidence that this of itself precluded her from  returning to Australia as an Australian citizen. 

1. Therefore, on the available material, the Tribunal is not satisfied the review applicant is a settled Australian citizen at time of application or at time of decision.

2. The Tribunal finds that, at the time of application, the visa applicants are not parents of a person who is a settled Australian citizen and therefore do not satisfy cl.143.211. The Tribunal is not satisfied that at the time of decision the visa applicants continue to satisfy the criterion in cl.143.211 and therefore do not satisfy cl.143.221.

3. In reaching these conclusions, the Tribunal notes the applicant was not aware of the requirement that the sponsor be a ‘settled Australian citizen’ at time of application and acknowledges that this was her mistake.  This outcome does not preclude a fresh application being lodged for the visa applicants once the review applicant returns to Australia to live in future.   

   CONCLUSION

4. For the reasons given above the Tribunal finds the visa applicants do not satisfy the requirements of cl.143.211 or cl.143.221

   DECISION

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

   Meena Sripathy
   Member