Xi (Migration)

[2018] AATA 258

Xi (Migration) [2018] AATA 258 (9 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Zhiyu Xi

VISA APPLICANTS:  Mr Shuncheng Xi
Ms Jinghua Jiang

CASE NUMBER:  1621579

DIBP REFERENCE(S):  2008/062260

MEMBER:Russell Matheson

DATE:9 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Parent (Migrant) (Class AX) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 103 (Parent) visa:

·cl.103.211 of Schedule 2 to the Regulations; and

·cl.103.221 of Schedule 2 to the Regulations.

Statement made on 09 February 2018 at 10:43am

CATCHWORDS
Migration – Parent (Migrant) (Class AX) visa – Subclass 103 (Parent) – Property in Australia – Financial security – Reasonable period in Australia – Employment circumstances – Intentions to live in Australia

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.05, Schedule 1 Item 1124, Schedule 2 cls 103.211, 103.221

CASES
Naiker v MIMA [2002] FCA 888
Huang v MIMIA [2007] FMCA 720

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 to refuse to grant the visa applicants Parent (Migrant) (Class AX) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 7 April 2008. The delegate refused to grant the visas on 18 November 2016 on the basis that cl.103.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not satisfied because the delegate was not satisfied the sponsor is a settled citizen. The sponsor seeks review of the delegate’s decision.

   RELEVANT LAW

3. At the time the visa application was lodged, the Parent (Migrant) (Class AX) visa contained Subclass 103 (Parent): Item 1124 of Schedule 1 to the Regulations.

4. The Parent (Migrant) (Class AX) visa is a permanent visa for parents of settled Australian citizens, Australian permanent residents and eligible New Zealand citizens who satisfy the ‘balance of family’ test.

5. The criteria for a Subclass 103 visa are set out in Part 103 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.

6. The primary criteria require 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.103.211. Under r.1.03 of the Regulations, ‘parent’ includes an adoptive or step parent and ‘step-child’ in relation to a parent is a child who is the natural or adopted child of a person’s current or, in certain circumstances, former spouse.

7. The Regulations also require that the visa applicant be sponsored at the time of application by, if the child has turned 18, the child or the child’s cohabiting spouse (if that person has turned 18) or, if the child has not turned 18, by either the child’s cohabiting spouse (if the spouse has turned 18) or a relative or guardian of the child or the child’s spouse who has turned 18 or a community organisation: cl.103.212.

8. The visa applicant must also satisfy the ‘balance of family’ test: cl.103.213. The ‘balance of family test’ is defined at r.1.05 of the Regulations as follows:

   1.05Balance of family test

   (1)For the purposes of this regulation:

   (a)a person is a child of another person (the parent) if the person is a child, adopted child or step child of:

   (i)the parent; or

   (ii)a spouse of the parent; or

   (iii)a former spouse of the parent, if the child was born or adopted:

   (A)before the parent became the spouse of the former spouse; or

   (B)while the parent was the spouse of the former spouse; and

   (b)if the whereabouts of a child of the parent are unknown, the child is taken to be resident in the usual country of residence of the parent.

   (2)A parent satisfies the balance of family test if:

   (a)each of the children of the parent is either:

   (i)lawfully and permanently resident in Australia; or

   (ii)a person who is:

   (A)an eligible New Zealand citizen; and

   (B)usually resident in Australia; or

   (b)the number of children of the parent who are lawfully and permanently resident in Australia or are eligible New Zealand citizens usually resident in Australia is:

   (i)greater than, or equal to, the total number of children of the parent who are resident overseas; or

   (ii)greater than the greatest number of children of the parent who are resident in any single overseas country.

   (3)In applying the balance of family test, no account is to be taken of a child of the parent:

   (a)if the child has been removed by court order, by adoption or by operation of law (other than in consequence of marriage) from the exclusive custody of the parent; or

   (b)if the child is resident in a country where the child suffers persecution or abuse of human rights and it is not possible to reunite the child and the parent in another country; or

   (c)if the child is resident in a refugee camp operated by:

   (i)the United Nations High Commissioner for Refugees; or

   (ii)the government of Hong Kong;

   and is registered by the Commissioner as a refugee; or

   (d)if:

   (i)the child is a step child of the parent; and

   (ii)the child had turned 18 at the time at which the parent became the spouse of the child’s other parent;

   and one or more of the following subparagraphs applies:

   (iii)the other parent is deceased; or

   (iv)the parent is permanently separated from the other parent; or

   (v)the parent is divorced from the other parent.

9. At the time of decision, the primary criteria to be satisfied are that:

   ·the visa applicant continues to satisfy the criterion in cl.103.211: cl.103.221

   ·a sponsorship of the kind mentioned in cl.103.212 has been approved by the Minister and is in force (whether or not the sponsor was the sponsor at time of application): cl.103.222

   ·an assurance of support has been accepted by the Department of Family and Community Services: cl.103.226

   ·the visa applicant and family members satisfy certain public interest criteria: cl.103.224, 103.225, 103.227 and 103.228

   ·if the applicant has previously made a valid application for another parent visa, that application is not ‘outstanding’: cl.103.229

   ·in the case of applications made on or after 1 July 2005, the visa applicant satisfies certain passport requirements: cl.103.230.

10. Part 103 of Schedule 2 also contains secondary criteria that must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.

11. The issue in the present case is whether the primary visa applicant was, at the time of application, the parent of an Australian citizen or a settled Australian permanent resident or a settled eligible New Zealand citizen as required by cl.103.211, and whether he continues to satisfy that criterion at the time of decision, as required by cl.103.221.

    CLAIMS AND EVIDENCE

12. The Tribunal has taken into consideration all the evidence in the Department’s file OSF2008/062260, folios numbered 1-94, and the Tribunal file 1621579, folios numbered       1- 58 and the oral evidence at the Tribunal hearing.

13. The Department indicated in its decision dated 18 November 2016 that the sponsor resided in Australia for 8 days in the 12 months preceding the Department’s decision.

14. On 8 September 2016 an Invitation to Comment letter was sent to the Authorised person (sponsor) via email, inviting the applicants to comment and provide information in relation to the sponsor’s extended absence from Australia. No response was received by the Department. The sponsor provided a written response (TF 14 paragraph 3) stating the circumstances and the reasons for not replying to the request from the Department. The sponsor admits that she was at fault for not responding to the request. Tribunal accepts that there may also be mitigating circumstances involved as to the sponsor’s non-compliance in responding to the Department’s request.  

15. According to Departmental records, the sponsor departed Australia on 14 March 2015 and returned to Australia for a period of 8 days from 18 February 2016 to 25 February 2016. The sponsor also returned to Australia on 6 November 2017 and departed on 16 December 2017 to China staying in Australia at her place of residence with her husband for a period of 41 days.

16. At the Tribunal hearing the sponsor made the following oral submissions via telephone in China.

17. The sponsor first arrived in Australia on 23 February 2005. She obtained permanent residency in Australia on 21 September 2007 and became an Australian citizen on 23 October 2009. The sponsor stated that she has renounced her Chinese citizenship.

18. The applicant states that she obtained her Masters and Ph.D. degrees from the University of New South Wales (UNSW) in 2007 and 2011 respectively and was offered an academic position with the university after completing her studies. The sponsor stated that as a result of academic vacancies were limited from 2010 she decided to accumulate her working experience overseas to improve her competiveness to apply for academic vacancies of a higher position at a later date in Australia. Subsequently the sponsor applied for an overseas position at Beihang University in Beijing and is currently employed as an associate professor at that university. The sponsor provided as evidence a contract of employment with the university for a period of three years dated 8 March 2015 to 17 March 2018. The sponsor also stated that the university provided accommodation for her on campus. The sponsor said that she is nine weeks pregnant and is planning to return to Australia to give birth and raise her child once her contract with the university is completed.

19. The sponsor stated that whilst working for Beihang University she has been co-operating with Professor Andrey Savkin from the UNSW and they have published numerous books and papers together. The sponsor said that she continues to work with colleagues at UNSW in terms of academic research. 

20. The sponsor said that her husband Mr Tao Yang holds a permanent position at the University of Technology, Sydney as a lecturer and they have been married for 10 years and he continues to live at their place of residence in Eveleigh. Further stating that the parties have an investment property in the Connor building at Broadway in Sydney and that they have a small mortgage on the property they reside in at Eveleigh. The sponsor said that they are financially secure and are able to financially support and care for her parents in their four bedroom residence in Eveleigh.

21. The Tribunal is satisfied on the evidence presented by the sponsor the applicants are sponsored by a settled Australian citizen.

    FINDINGS AND REASONS

22. The visa application was made on the basis that the visa applicants are the parents of Dr Zhiyu XI who is an Australian citizen (‘the child’). The evidence before the Tribunal is that the sponsor, Dr Zhiyu is the child of Mr Shuncheng XI (born 26 June 1952) and Mrs Jinghua JIANG (born 24 October 1953). The Tribunal makes that finding.

23. When considering the definition of ‘settled’ in r.1.03, there are two legal issues arising for consideration: whether the individual is ‘lawfully resident in Australia’ and whether this has been ‘for a reasonable period’.

24. 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. Hely J 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 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.

25. The term ‘reasonable period’ is also undefined in the legislation.

26. The question of what is a ‘reasonable period’ was considered in Huang v MIMIA [2007] FMCA 720 (Cameron FM, 16 May 2007). 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.

27. Although not binding on the Tribunal, Departmental guidelines (PAM 3)  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.   

28. Resident’ is also not defined in the legislation. Lawfully resident generally speaking, the term has been interpreted as incorporating two elements, namely: 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.

29. In this case, the chronology of the sponsor’s movement’s shows she arrived in Australia on 23 February 2005. Her primary place of residence is in Australia in the suburb of Eveleigh, Sydney. She obtained permanent residency in Australia on 21 September 2007 and became an Australian citizen on 23 October 2009. The sponsor has been working full time for the past three years in China at Beihang Unversity.

30. The evidence from the sponsor that she has lived and studied in Australia from February 2005. She obtained her Masters and Ph.D. degrees from the University New South Wales (UNSW) in 2007 and 2011 and was married to her current partner Mr Tao Yang in January 2008. The sponsor accepted a position of employment with Beihang University in China for a period of three years and has returned to Australia for a period of forty nine days during this time. The sponsor and her partner own two properties in Australia. The Tribunal accepts that the sponsor has only returned for a short period of time during her employment in China which expires in March 2018. The Tribunal accepts that a ‘reasonable period’ need not be a lengthy period, and that individual circumstances will affect what amounts to a reasonable period. The Tribunal is satisfied that the sponsor has spent a reasonable period of time in Australia and that her employment circumstances have prevented her from spending longer periods of time in Australia.

31. The Tribunal is satisfied the sponsor has demonstrated her intentions to live permanently in Australia despite her current employments situation. The Tribunal finds she is a settled Australian citizen.

32. The Tribunal finds that the sponsor was a settled permanent Australian resident at the time of application, 7 April 2008.

33. The sponsor according to Departmental records at the time of application was the holder of a permanent skilled independent overseas student visa (DD8880) issued on 21 September 2007. Therefore the sponsor was a non-citizen, being usually resident in Australia and the holder of a permanent visa at the time of application. The Tribunal is satisfied the sponsor meets r.103.

34. The Tribunal is satisfied that the applicant is a parent of the sponsor who was at the time of application a settled Australian permanent resident, and is now a settled Australian citizen.   

    CONCLUSIONS

35. For the reasons given above the Tribunal finds the primary visa applicant satisfies the requirements of cl.103.211 and cl.103.221.

    DECISION

36. The Tribunal remits the applications for Parent (Migrant) (Class AX) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 103 (Parent) visa:

    ·cl.103.211 of Schedule 2 to the Regulations; and

    ·cl.103.221 of Schedule 2 to the Regulations.

    Russell Matheson
    Member