Yao (Migration)

[2020] AATA 444

Yao (Migration) [2020] AATA 444 (11 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Limei Yao

VISA APPLICANTS:  Mr Lingen Yao
Ms Guoqin Xu

CASE NUMBER:  1709584

DIBP REFERENCE(S):  2008/062412 OSF2008/062412

MEMBER:Christine Cody

DATE:11 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Parent (Migrant) (Class AX) visas for reconsideration, with the direction that the visa applicants meet 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 11 FEBRUARY 2020 AT 12:20PM

CATCHWORDS
MIGRATION – Parent (Migrant) (Class AX) visa – Subclass 103 (Parent) – parent of a ‘settled’ Australian citizen or permanent resident – review applicant’s movement record – extended absence from Australia between 2009 and 2016 – lawfully resident in Australia for a ‘reasonable’ period – Departmental policy – two-year policy requirement – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 103.211, 103.221

CASES
Xiang v MIMIA (2004) 81 ALD 301

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 14 April 2008. They were sponsored by their daughter, the review applicant in these proceedings.

3. The delegate refused to grant the visas on 4 April 2017 on the basis that cl.103.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not satisfied because the visa applicants’ sponsor, the review applicant in these proceedings, was not a settled Australian citizen at the time of decision as required.

4. The review applicant lodged an application for review of the delegate’s decision with the Tribunal on 2 May 2017.

5. The review applicant appeared before the Tribunal on 4 February 2020 to give evidence and present arguments. She was represented in relation to the review by her registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   RELEVANT LAW

7. 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.

8. 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.

9. 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.

10. The primary criteria include a requirement that at the time of application, a visa applicant be a ‘parent’ of a settled Australian citizen or permanent resident, or a settled eligible New Zealand citizen: cl.103.211.

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

12. Clause 103.221 requires that at the time of decision, a visa applicant continues to satisfy the criterion in cl.103.211.

    CLAIMS AND EVIDENCE

    The Department

13. According to the application forms provided to the Department, the first named visa applicant, (the father) was born in 1954 in Jiangsu, China. The second named visa applicant (the mother) was born in 1956 in Jiangsu. They are married and the review applicant is their only child. She was born in 1981 in China. The review applicant had first arrived in Australia on 19 September 2004 and engaged in studies in Australia, and was granted permanent residency on 7 November 2007. At the time of application she was still a Chinese citizen, with Australian permanent residence. She was working and renting a three-bedroom flat with three friends. She was not married.

14. The Department file contains various documents in support of the application including a copy and translation of a kinship certificate confirming that the first and second visa applicants are the parents of the review applicant; a copy and translation of a marriage certificate for the first and second visa applicants; a copy and translation of the review applicant’s birth certificate, confirming that the visa applicants are her parents; copies and translations of the visa applicants’ birth certificates; a copy of the review applicant’s Australian passport (obtained after she became an Australian citizen in 2009).

15. Departmental movement records show the following movements for the review applicant:

    ·     For the two years prior to the time of application (from 14 April 2006 to 14 April 2008) the review applicant was in Australia as follows:

    o   14 April 2006 – 28 January 2007: In Australia holding a student visa TU573

    o   [She was then out of the country for one month returning on 28 February 2007]

    o   28 February 2007 – 6 November 2007: In Australia holding a student visa TU573 (valid until 31 August 2008)

    o   7 November 2007 – 13 November 2007: In Australia holding a permanent DD-880 visa.

    o   [She was then out of the country for 6 weeks from 13 November 2007 returning on 14 January 2008]

    o   14 January 2008 – 14 April 2008 (time of application).

    ·     At the time of application the review applicant was a permanent resident and had been so granted on 7 November 2007.  

    ·     After the application:

    o   She left and returned to Australia a few times in 2008–2009, and then on 23 August 2009 she departed Australia and did not return until 8 December 2016.

    o   She left Australia on 1 June 2017 and returned on 31 October 2017.

16. As noted above, the application had been made in 2008. More than 8 years later, a letter from the Department to the visa applicant dated 22 November 2016 was sent, noting that the application was at the stage of consideration, and requesting further information. It stated that the review applicant (the sponsor) had departed Australia on 23 August 2009 and had not returned, which may mean that she may not be considered as settled within Australia.

17. In response the review applicant provided documents and information to the Department:

    ·     In an email dated 9 January 2017, the review applicant stated that she acquired Australian citizenship on 22 April 2009, she has been overseas but returned to Australia on 8 December 2016, she has a residential property in Melbourne which she purchased in June 2015, maintains a Bankwest account, applied for Australian citizenship for her children following her house purchase, and received a job offer in Melbourne, and now intends to reside in Australia;

    ·     In an email dated 3 April 2017, the review applicant states that she is pregnant and the child is expected to be born on 19 August 2017, and she would like her parents to be in Australia for that.

18. Documents in support included:

    ·     A confirmation of landlord insurance for a property in Victoria in the review applicant’s name, valid from 15 October 2016 until 15 October 2017;

    ·     Bank statements for a Bankwest savings account in the review applicant’s name from 23 October 2013 until 12 December 2016, showing a balance of $24,064.49, all of which is then transferred to another account on 12 December 2016 with the description ‘bom’ before $4,000 is transferred back to the account on the same day with the description ‘imax’. The statement closes with an account balance of $4,000;

    ·     An offer of employment for the review applicant by Harcourts Mitcham dated 28 December 2016, with the position to begin on 16 January 2017 in Victoria;

    ·     Copies of Australian citizenship by descent certificates for two of the review applicant’s children, Zhile Yao and Zhiyao Liu.

    The delegate’s refusal

19. The delegate refused the application on 4 April 2017. The basis for the delegate’s decision was that the review applicant had departed Australia on 23 August 2009 and only returned on 8 December 2016. The delegate was not satisfied that the evidence indicated that the review applicant’s partner and children had returned or intended to return to Australia. The delegate found that, according to Departmental records, the review applicant’s partner was not an Australian permanent resident who could reside in Australia. The delegate found that the review applicant and her family had been residing overseas since 2009, thereby establishing a home there.

20. The delegate gave little weight to the Bankwest statements as there were no regular transactions of funds in and out of the account. In regards to the property that the review applicant stated that she bought in 2015, the delegate found that, according to the Bank of Melbourne Insurance Policy, the property is insured under a Landlord Insurance policy suggesting that the property is being rented out. Further, although the review applicant provided a letter of offer of employment, the delegate found that there was no evidence that the review applicant had accepted the position or commenced working. The delegate found that there was no evidence that the review applicant had made any arrangement to enrol her eldest child in a school in Australia.

21. Although the review applicant had advised that she was pregnant and the baby was due on 19 August 2017, as her parents and her family are currently overseas, the delegate found that the review applicant would not remain in Australia permanently, especially since her partner was not an Australian resident and therefore would be unable to come to Australia to stay indefinitely in Australia.

22. The delegate therefore found that the review applicant was not a settled Australian citizen, and therefore r.1.03 was not met. Thus, the delegate was not satisfied that the applicants met cl.103.221 in Schedule 2 of the Regulations at time of decision. As the applicants were assessed as not meeting cl.103.221, the delegate did not continue to assess the application against the other criteria in Subclass 103.

23. There are no non-disclosure certificates on the file.

    The Tribunal

24. The review applicant applied to the Tribunal for review of the delegate’s decision on 2 May 2017. The review applicant provided a copy of the delegate’s decision record to the Tribunal. The review applicant was represented by her registered migration agent.

25. Written submissions from the review applicant’s agent as well as a written statement by the review applicant dated 3 February 2020 provided detailed background and explanations for the review applicant’s movements, and her intentions. When studying in Australia she had completed ELICOS and a Master of Professional Accounting, as well as a Master of Commerce by June 2007. The review applicant visited China between April and August 2009, to meet her husband-to-be. He was from China, but had been working in Japan. They married on 30 December 2009. They considered returning at the time to Australia however they stayed in Japan because of her husband’s job in Japan. Then, as the husband’s father suffered from depression and was in a very bad state, the review applicant and her husband returned to China to be with her husband’s father. Medical documents were provided in this regard including a letter from Wuxi City Mental Health Centre dated 14 January 2020, stating that Xiaoniu Liu has been undergoing treatment for depression at the hospital since 2009; a copy and translation for a Jiangsu Province Outpatient Service Report dated 29 January 2020, regarding the prescription of quetiapine and clonazepam for Xiaoniu Liu; and a Jiangsu Province Outpatient Service Receipt for a psychiatric consultation with Xiaoniu Liu on 29 January 2020.

26. It was stated that one of the main reasons why they remained in China for so long was her husband’s father’s long-term mental health issues. There were several occasions when they sought to return to Australia, but this did not work out for them. For example, when the first child was born (6 July 2011), they wanted to return to Australia however the father-in-law’s condition deteriorated. In 2013, the review applicant’s own father was hospitalised and she had to take care of her father, her new baby, and her ill father-in-law at the same time. Medical documents were provided in relation to her own father’s health in 2013, namely a copy and translation of a Wuxi Jiashihengxin Hospital discharge sheet for the first named visa applicant Lingen Yao, regarding an assessment of a kidney stone, treatment and discharge, noting the visa applicant was admitted on 14 March 2013, had an operation on 16 March 2013 and was discharged on 25 March 2013.

27. The review applicant’s second child was born prematurely on 16 April 2014. In November 2014 the review applicant’s mother was hospitalised with an infection after hysterectomy. The review applicant and her husband decided to return to Australia as soon as possible once her mother was discharged from the hospital.

28. At the beginning of 2015 they discussed with their parents that they wished to move to Australia soon. They started to search for property and purchased a property in August 2015. In November 2015 they applied for Australian citizenship for the children. The review applicant’s father-in-law’s condition became worse and so they again postponed returning to Australia. He later improved, and the review applicant decided to return first, to prepare for the family, and then her husband and children would follow. When she returned to Australia on 8 December 2016, she was pregnant with the third child (although she didn’t know it).

29. Due to her past history of difficulties while pregnant, including a miscarriage and hypothyroidism while pregnant, and as her family were all in China and she had given birth to all her children in China, the review applicant returned to China to give birth to her third child. He was born on 11 August 2017.

30. On 31 October 2017 the review applicant, her husband, their oldest son and their baby all came to Australia. They left their second son in China so that her father-in-law could still see a grandson often. On 5 May 2018, the review applicant’s parents brought the second son to Australia. The two oldest children have been studying at primary school in years 3 and 1 respectively. They are quickly integrating into life both inside and outside of school. The family has been living in their property since their arrival in Australia, and they registered a courier company business on 13 June 2018.

31. It was submitted that they received the letter from the Department dated 22 November 2016 by post, in China, on 2 December 2016. Evidence of the envelope was provided. It was noted that the review applicant had already booked her flight to Melbourne on 29 November 2016, before the Department had raised as an issue whether or not she was settled in Australia. It was stated that the review applicant did not return to Australia as a reaction after receiving the invitation letter from Australia; this had been planned beforehand.

32. Finally, it was submitted that the review applicant has had to delay her plans to return to Australia several times. However, she has always intended to return to Australia to live permanently in Australia and make Melbourne her and her family’s home.

33. The applicant’s agent submitted the following documents to the Tribunal before the Tribunal hearing held on 4 February 2020:

    ·Relating to her husband and children’s residence in Australia: A letter from the Department to the review applicant’s husband, Minjie Liu, dated 16 September 2019, stating that the Department has granted the UC 801 partner visa; a copy of the passport of the review applicant’s husband and a copy and translation of a birth certificate for the review applicant’s husband; a letter from Victorian Fisheries to the review applicant’s husband dated 27 December 2017, stating that he has been granted a recreational fishing licence; a letter from the Dandenong Christian Reformed Church dated 29 January 2020, stating that the review applicant’s children have been attending a music programme at the church since 3 April 2019; email correspondence on 10 September 2019 confirming enrolment of the review applicant’s eldest child in the scouts programme; a copy and translation of a Chinese birth certificate for the review applicant’s child Sam Liu, born on 11 August 2017; a copy and translation of a Chinese birth certificate for the review applicant’s child Zhile Yao, born on 16 April 2014; a copy and translation of a Chinese birth certificate for the review applicant’s child Zhiyao Liu, born on 6 July 2011; Australian citizenship certificates for the review applicant’s children; a polysomnography report for the review applicant’s child Zhile Yao from Melbourne Children’s Sleep Centre dated 26 September 2018, concerning the child’s sleep apnoea;

    ·Relating to the review applicant’s residence (with her family) in Australia: a Medicare card listing the review applicant, her husband, and her children, valid until June 2023; a Coles Car Insurance policy addressed to the review applicant, providing cover from 9 November 2017 until 9 November 2018; a Bank of Melbourne credit card statement for a card in the review applicant’s name from 10 December 2019 until 9 January 2020, showing various Australian payments; a Vic Roads car registration renewal, addressed to the review applicant, dated 6 November 2019; a CostCo card, a Coles FlyBuy card and Monash Library card in the review applicant’s name; a photo of the review applicant’s Victorian driver’s licence; a statement of adjustment from the review applicant’s solicitors D Y & Co Lawyers for the purchase of the property in Wheelers Hill, dated 10 August 2015; a letter from D Y & Co Lawyers to the review applicant regarding the purchase of the property, dated 10 August 2015; a City of Monash 2019/2020 rate and valuation notice addressed to the review applicant for the home in Wheelers Hill, Victoria, with a total rate payable of $1,517.50; a Bank of Melbourne statement addressed to the review applicant for a home loan from 12 February 2019 until 11 August 2019, showing payments of $18,796.07 for a mortgage, with monthly repayments of $3,404; a St George bank statement for an account in the review applicant’s name from 10 September 2019 until 9 December 2019, showing various transfers, mortgage payments and bill payments; an undated provider statement from Solar Victoria addressed to the review applicant in regards to rebates due for her property in Wheelers Hill; a bill from Allstate Solar Energy addressed to the review applicant dated 15 March, regarding the installation of solar panels at the Wheelers Hill address; a tax invoice from Appliances Online addressed to the review applicant at the Wheelers Hill address, dated 30 June 2018; a tax invoice from Yarra Valley Water addressed to the review applicant with a due date of 28 January 2020, showing payments due for water usage; a bill from Alinta Energy addressed to the review applicant dated 27 November 2019, showing amount due for gas use; an electricity bill from Amaysim addressed to the review applicant dated 16 January 2020; a certificate of safety for prescribed electrical installation work for the review applicant’s residence, dated 11 February 2019; a copy of the review applicant’s Australian passport.

    ·Relating to the business operated by the review applicant and her husband in Australia: a letter from the Australian Business Register to Liu & Yao Pty Ltd dated 14 June 2018, confirming the registration of Liu & Yao Pty Ltd as a company, with the review applicant listed as the shareholder, secretary and sole director; an ASIC Certificate of Registration as a Company for Liu & Yao Pty Ltd, dated 13 June 2018; an undated ATO payment slip addressed to Liu & Yao Pty Ltd, requesting payment of $3,038; a letter from the ATO to Liu & Yao Pty Ltd dated 10 June 2019, regarding registration for PAYG withholding; a letter from AAMI confirming a purchase of car insurance from 17 June 2019 until 17 June 2020, addressed to Liu & Yao Pty Ltd; a Bank of Melbourne bank statement for a ‘freedom business’ account in the review applicant’s name, from 14 December 2019 until 13 January 2020, showing various transfers for wages to the review applicant and her husband, and courier charges; a certificate from Couriers Please addressed to the review applicant’s husband stating that he was a High Flyer for October 2018; a franchise agreement between Couriers Please and Liu & Yao Pty Ltd; a photo of a van; a tax invoice for the sale of a new vehicle from Waverley Toyota for the purchase of a van by Liu & Yao Pty Ltd on 27 June 2018.

    The hearing

1. At the hearing the review applicant confirmed that she had read the agent’s submissions and that they were true and correct, as was her statement to the Tribunal. She stated that at the time she applied for permanent residence in Australia, it was her intention to stay in Australia, otherwise she would not have applied for permanent residence. Similarly, she applied for citizenship in 2009 because it was her intention to remain living in Australia. She confirmed that her house had been purchased in Australia in 2015, well before the Department wrote to her, questioning her status as a settled person in Australia.

2. She said that the whole time she was overseas, she was not working because she gave birth to a child and her in-laws were not well and she had to look after them and also the child. She said that when she and her husband got married it was their plan to live in Australia but things got in the way. They intend to continue living in Australia. Their children are in school here, they are well adapted in the environment here. She and her husband have a business and it is improving. The children and whole family like it better here.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. As noted above, cl.103.211 requires that at the time of application the visa applicants be the parents of a settled Australian citizen, Australian permanent resident or eligible New Zealand citizen. As noted above, the definition of ‘settled’ in r.1.03 of the Regulations requires that the person be lawfully resident in Australia for a reasonable period.

4. The Departmental policy contained in its Procedures Advice Manual (PAM3) provides guidance on the interpretation of reasonable in this context, and states that in normal circumstances, two years is considered to be a reasonable period but there may be exceptions and the facts of each case must be considered on a reasonable basis. For Australian citizen sponsors a lesser eligibility period may be considered when assessing the ‘settled’ criterion, where there are compassionate or compelling circumstances. It also indicates that a shorter period of residence of at least three months can be considered to be a reasonable period in particular circumstances. These include situations where an Australian citizen has resided overseas for a lengthy period, has returned and wishes to sponsor family members but may be precluded from doing so due to the two-year policy requirement.

5. The Tribunal accepts the evidence and submissions provided, and on that basis it finds that the review applicant was lawfully settled in Australia for a reasonable period at both the time of application and at the time of decision. Concerning the time of application (14 April 2008), the applicant had, for at least two years prior to this time, been clearly based in Australia, with some visits back to China, and her application for permanent residence also indicates that she was settled in Australia. The Tribunal is not bound to follow Departmental policy relating to a two-year period of prior lawful residence in determining whether or not the review applicant should be considered as ‘settled’ in Australia, however it does note her particular circumstances that she had been based in Australia for at least two years as at the time of application.

6. As at the time of decision, the Tribunal notes that the review applicant last returned to Australia on 31 October 2017 and has not left since (a period of over two years). The Tribunal accepts that her extended absence from Australia from 2009 was because there were impediments in place stopping her from moving back to Australia, but that those impediments ceased throughout 2016/2017, at which time the whole family moved to Australia and committed to their life here, in terms of work, home, school and other activities.

7. Having regard to all of these matters, and taking into account the review applicant’s particular circumstances, the Tribunal is satisfied that notwithstanding the review applicant’s short absences outside of Australia in 2006–2008, the review applicant was lawfully resident in Australia for a reasonable period at the time of application, and notwithstanding her extended absence from Australia between 2009 and 2016, the review applicant, at the time of decision, has been lawfully resident in Australia for a reasonable period.

8. The Tribunal is therefore satisfied and finds that at the time of application, the review applicant was a settled Australian (at the time, permanent resident) within the meaning of r.1.03. It also finds that she is a settled Australian (now, as an Australian citizen) within the meaning of r.1.03 at the time of decision. It is satisfied that the visa applicants meet the criterion in cl.103.211 and can be considered to ‘continue’ to meet this criterion and thus also satisfy the criteria in cl.103.221. In this regard, the Tribunal has had regard to the guidance in Xiang v MIMIA (2004) 81 ALD 301 about the interpretation of continues, and considers that it is reasonable to assess that the visa applicants continue to meet the criterion even though there may have been a period between the time of application and the time of this decision when they may not have done so because of the review applicant’s extended absence from Australia during that period.

9. The Tribunal considers that both visa applicants meet these primary criteria for the visa for which they both applied.

10. The Tribunal finds that, at the time of application, the visa applicants were parents of a person who was a settled Australian permanent resident and therefore satisfy cl.103.211. The Tribunal is satisfied that at the time of decision the visa applicants continue to satisfy the criterion in cl.103.211 (as they are the parents of a settled Australian citizen) and therefore satisfy cl.103.221.

    CONCLUSIONS

11. For the reasons given above the Tribunal finds the visa applicants satisfy the requirements of cl.103.211 and cl.103.221.

    DECISION

12. The Tribunal remits the applications for Parent (Migrant) (Class AX) visas for reconsideration, with the direction that the visa applicants meet 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.

    Christine Cody
    Member