Yao (Migration)

This matter concerned an application for a Parent (Migrant) (Class AX) visa, Subclass 103, by the parents of a settled Australian citizen. The review applicant, the daughter of the visa applicants, had been granted Australian permanent residency in 2007 and later became an Australian citizen in 2009. The Department had raised concerns regarding the review applicant's extended absence from Australia between August 2009 and December 2016, questioning whether she could be considered "settled" in Australia at the time of the visa decision. The decision under review was made by the Department.

The primary legal issue before the Tribunal was whether the review applicant, as the sponsor, had been lawfully resident in Australia for a "reasonable" period, a criterion for the visa applicants to satisfy cl.103.211 and cl.103.221 of Schedule 2 to the Regulations. This involved considering the Department's internal policy, which appeared to suggest a two-year requirement for the sponsor to be settled in Australia.

The Tribunal found that the visa applicants satisfied the requirements of cl.103.211 and cl.103.221. While acknowledging the review applicant's extended absence from Australia, the Tribunal did not find that this absence necessarily meant she was not "settled" for the purposes of the visa. The Tribunal remitted the applications for reconsideration, directing that the visa applicants met the specified criteria for a Subclass 103 (Parent) visa.