Wang (Migration)

This case concerned an appeal by visa applicants, parents of the review applicant, against the refusal of their Contributory Parent (Migrant) (Class CA) visa applications. The primary issue was whether the review applicant, an Australian citizen and the sponsor, was "settled" in Australia at the time of the visa application and decision, as required by the relevant migration regulations. The Administrative Appeals Tribunal was tasked with determining this question.

The legal issues before the Tribunal were whether the sponsor, the daughter of the visa applicants, met the definition of a "settled" Australian citizen. This involved considering her period of residence in Australia, her intention to reside permanently, and the nature and duration of her absence from the country. Specifically, the Tribunal had to assess whether her prolonged absence, coupled with her stated intention to return, was sufficient to satisfy the requirement of being lawfully resident in Australia for a "reasonable period" and being "settled."

The Tribunal reasoned that while the sponsor had established significant ties to Australia, including completing her education, obtaining citizenship, and owning property, her departure in October 2015 and subsequent prolonged absence were critical. Despite her stated intention to return permanently and explanations for delays, including the COVID-19 pandemic, the Tribunal found that her absence, with only one short visit, was not indicative of being "settled" in the common law sense. The Tribunal noted that exceptions existed for Australian citizens wishing to return during border closures, and therefore did not accept that the pandemic alone explained her continued absence. Consequently, the Tribunal was not satisfied that the sponsor was a settled Australian citizen at the relevant times.

The Tribunal affirmed the delegate's decision, finding that the visa applicants did not satisfy the criteria for the Contributory Parent visa, specifically clauses 143.211 and 143.221, as their sponsor was not considered a settled Australian citizen. The Tribunal noted that a fresh application could be lodged once the sponsor returns to Australia to live.