Zhang (Migration)

[2018] AATA 1203

Zhang (Migration) [2018] AATA 1203 (6 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Lu Zhang

VISA APPLICANTS:  Mrs XIAOPING LU
Mr Kunzhao Zhang

CASE NUMBER:  1710238

DIBP REFERENCE(S):  2008/062120 OSF2008/062120

MEMBER:Susan Trotter

DATE:6 April 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application 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 06 April 2018 at 10:19am

CATCHWORDS

Migration – Parent (Migrant) (Class AX) – Subclass 103 (Parent) visa – Whether the review applicant is a settled Australian citizen – Extended time away from Australia – Cared for parents in China – Continued with his business in Australia – Review applicant elected for his children to be Australian citizens – Family has moved back to Australia – Child at school in Australia

LEGISLATION
Migration Act 1958 s 65
Migration Regulations 1994 r 1.03 Schedule 1 Item 1124 Schedule 2 cls 103.211, 103.22

CASES
Re Drake (No 2) (1979) 2 ALD 634
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
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 visas on 1 April 2008. They were sponsored by their son, the review applicant in these proceedings.

3. The delegate refused to grant the visas on 3 March 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 12 May 2017. A copy of the delegate’s decision was provided with the application.

5. The first named visa applicant appeared before the Tribunal on 20 March 2018 to give evidence and present arguments. The Tribunal also heard evidence from the review applicant’s friend and business colleague, Mr Xudong Teng.

6. The review applicant was represented in relation to the review by his registered migration agent.

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

   ISSUES

8. 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.

9. 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.

10. The criteria for a Subclass 103 visa are set out in Part 103 of Schedule 2 to the Regulations.

11. 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.

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

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

    EVIDENCE

14. The visa applicants are both aged 67 and are citizens of the Peoples Republic of China. Their visa application states that they have one child, the review applicant. The review applicant is a 38 year male Australian citizen. The Tribunal has sighted certified copies birth certificates for all parties and a certified copy of the review applicant’s Australian citizenship certificate which documents were provided to the Department and is satisfied that the visa applicants are the parents of the review applicant, an Australian citizen and finds accordingly.

15. The review applicant’s evidence before the Tribunal, in a statutory declaration dated 10 March 2018 and at hearing, supported by documentary evidence where relevant, included as follows:

    (a)  He is the only child of his mother and father, the visa applicants. His wife’s parents and brother live in China.

    (b)  He first arrived in Australia in April 2002 to study and became a permanent resident on 21 January 2004 and an Australian citizen on 25 October 2006.

    (c)  On 1 April 2008, the visa application was lodged at which time the review applicant intended to remain in Australia.

    (d)  In 2009, the review applicant’s business in Australia was continuing to grow and he purchased a home for himself and also a home for his parents when their visa was approved. However, his mother fell ill in 2009 and, throughout 2009 and 2010, he travelled back and forth between Australia and China visiting his mother. Due to a number of medical issues that arose during this time, the review applicant decided to extend his stay in China, leaving Australia in January 2011 to be with his parents.

    (e)  In April 2009, the review applicant’s mother suffered various medical issues as a result of a significant fall, for which she was hospitalised on 7 April 2009 and subsequently required six months of bed rest, as evidenced by medical documents provided to the Tribunal. The review applicant’s father was not able to take time off work to look after his wife. It became apparent that even after the bed rest for six months, his mother was not going to be able to move independently and the review applicant decided to extend his stay in China for another year to care for his mother. Throughout 2009 and 2010 he continued to return to Australia on several occasion to tend to his business, his house and visit his friends. During the times he returned to Australia, his mother’s older sister looked after her but was only able to do so for short periods of time. His father could not adequately care for his mother by himself because of work commitments.

    (f)    In 2010, the review applicant made the decision to clear his souvenir business in Australia of stock and to move to China in January 2011 to continue to care for his mother. Medical records show that his mother severe back problems between 2009 and 2012.

    (g)  The review applicant met his wife in China in 2010 and they had two children (in 2011 and 2012).

    (h)  In November 2012, the review applicant’s mother was diagnosed with further medical issues, as evidenced by medical reports, and relied heavily upon the review applicant to assist her with day to day activities. In addition to caring for his mother, the review applicant assisted his mother in caring for her mother and father who lived in the countryside, visiting them fortnightly in the countryside where they lived, prior to their deaths on 30 December 2014 and 19 January 2015 respectively.

    (i)    The review applicant had been intending to return to Australia however his father was admitted to hospital in June 2012 and was diagnosed with diabetes requiring regular blood sugar monitoring in hospital and several complications meaning he also required support from his son, the review applicant. For the first four year of the diagnosis, the review applicant’s father struggled to adjust his lifestyle and had various complications, including an extended hospitalisation in June 2016.

    (j)    Further, the review applicant’s mother-n-law was suffering medical issues from April 2010 and on 9 September 2015 was admitted to hospital after having suffered repeated chest tightness between 2010 and 2015. She underwent surgery on 30 November 2015 and was discharged on bedrest for a month. As the review applicant’s mother-in-law and father-in-law lived in country where there was limited medical support, his mother-in-law had to constantly stay with the review applicant and his wife in the city to obtain regular medical advice. As the only daughter, the caring duties for her mother fell to the review applicant’s wife. There were also complications with her medical insurance such that until 2017, she was only covered by insurance if she sought treatment in the province where the review applicant and his wife were living. This insurance position changed in April 2017 and from April 2017, the review applicant’s mother-in-law and father-in-law have lived in a different province with their son, which enabled the review applicant and his wife to move back to Australia.

    (k)   The review applicant himself was also hospitalised twice in China (for six days in November 2015 and for five days in March 2017).

    (l)    In preparation for a return to Australia, on 19 May 2016, the review applicant applied for a partner visa for his wife, with the visa being granted on 22 September 2016.

    (m) On 2 November 2016, tickets were purchased for the review applicant, his wife and their two children to return to Australian permanently. Tickets were also purchased for the visa applicants to travel with them.

    (n)  The review applicant travelled to Australia in April 2017 to prepare a home in readiness for his family’s arrival in June 2017 and the entire family has continued to reside in Australia since they all arrived in June 2017.

    (o)  The review applicant’s oldest child commenced Prep at the Gold Coast at the beginning of 2018.

    (p)  Throughout the review applicant’s extended time away from Australia, he maintained connections in Australia through his business, his two properties, cash assets and with friends and associates in Australia. During his absence from Australia, his two properties in Australia have been rented with the intention that when his parents’ health improved enough he would return to Australia and resume residence in his home with his other property intended as a home for his parents.

    (q)  He has provided letters from friends and neighbours confirming their knowledge of his intention to return to Australia when his parents’ health issues allowed.

    (r)   When their children were born in 2011 and 2012, the review applicant and his wife had to decide what citizenship their children would hold (as the Chinese government does not allow dual nationality). They elected for their children to hold Australian citizenship consistent with their planned imminent return to Australia.

    (s)  From 2013 to 2015, the review applicant retained $10,000 to $30,000 in his Australian bank account and, in December 2015, transferred $100,000 to the account, in readiness for the return to Australia.

    (t)    The review applicant first registered his business, Aussie Star Enterprises Pty Ltd on 4 April 2007. The business conducted a souvenir shop in Surfers Paradise. The business continued and was growing and the review applicant continued to run the business even after his mother’s health issues commenced, between April 2009 and January 2011.

    (u)  He retained business contacts in Australia throughout his time away including with a Mr Teng with whom he began a venture exporting Australian health food products into the Chinese market.

    (v)   This continued between 2011 and 2014.

    (w) Between 2013 and 2017, Mr Teng visited the review applicant in China a number of times and he was able to introduce Mr Teng to a number of important contacts in the community and refer potential clients for his real estate and migration business.

    (x)   Since returning to Australia in 2017, the review applicant reactivated his business, under a new business name, Pure Health Life, which he is using to export Australian health food products to China, with intentions to lease business premises to expand the business, with negotiations currently underway in that regard.

    (y)   During his time in China, the review applicant retained ownership of his two properties in Australia. He, his wife, their children and his parents are currently living in one of the properties. The other property has remained rented to tenants since 2008. However, the lease expires in September 2018 and he has given notice to the real estate agent of termination of the least then (and earlier if possible). He wants his parents to live in that house because it is very close to his home. The rental of the first property was made on the basis that he could retain his personal goods in the garages and could access those garages to access his personal belongings upon his return trips to Australia. When he arrived back in Australia in 2017 he moved straight back in to the property.

    (z)  His parents’ visitor visas expire at the end of July 2018. The situation will be very hard for his parents if the visa is not granted.

16. Mr Teng’s evidence to the Tribunal included as follows:

    (a)   He first met the review applicant in 2002/2003. They have a long-term friendship and also have business dealings together and are business partners.

    (b)   The review applicant had been living in China for many years but has retained business links in Australia, with which he has assisted the review applicant.

    (c)   It has always been his understanding that the review applicant has always wanted to return to Australia and has now done that.

    CONSIDERATION

17. Departmental policy contained within its Procedures Advice Manual (PAM3) provides guidance on the interpretation of "reasonable" in this context. As regards to the application of such policy guidelines, the Tribunal notes that although it may be guided by policy, it is not bound to follow it: see Brennan, J in Re Drake (No 2) (1979) 2 ALD 634. In Vishnumolakala v Minister for Immigration [2006] FMCA 1209 Smith FM held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and therefore are incapable of being elevated into legally necessary or relevant considerations. His Honour considered that there is no real analogy between PAM3 and the type of policy discussed by Brennan J in Re Drake (No 2)(1979) 2 ALD 634. In the Tribunal’s view what constitutes “reasonable” has to be considered in the context of all of a person’s particular circumstances.

18. Between 2002 and the date of the visa application, the review applicant was predominantly onshore in Australia interspersed with short visits overseas. He became a permanent resident on 21 January 2004 and an Australian citizen on 25 October 2006. The Tribunal is satisfied and finds that as at the time of the visa application, the review applicant was a settled Australian citizen within the meaning of r.1.03. The Tribunal finds that at the time of the visa application, the visa applicants were the parents of a person, the review applicant, who was a settled Australia citizen and therefore met cl.103.211.

19. The review applicant has at the time of this decision been back in Australia for nearly twelve months, less than the two years suggested as a reasonable period in the Department’s Policy Guide (PAM3). PAM3 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.

20. There are many aspects of the review applicant’s particular circumstances which lead the Tribunal to the view that a shorter period of residence than two years, or the suggested three months, can properly be regarded as reasonable in this case. These include that:

    (a)  There is significant and consistent evidence that the review applicant, his wife and children have re-established (the review applicant) and established (his wife and children) themselves in Australia and commenced making plans to do so in 2016, with the purchase of tickets to effect that return prior to the delegate’s decision.

    (b)  Notably the review applicant elected for his children to be Australian citizens, rather than Chinese citizens, consistent with a continuing intention to return to Australia when his parents’ and his mother-in-law’s health situations allowed.

21. Having regard to all of these matters, taking into account the review applicant’s particular circumstances, the Tribunal is satisfied that notwithstanding the review applicant’s extended absences outside Australia between late 2010/early 2011 and April 2017, that the review applicant, at the time of decision, has been lawfully resident in Australia for a reasonable period.

22. The Tribunal is therefore satisfied and finds that at the time of decision, the review applicant is a settled Australian citizen within the meaning of r.1.03.

23. The Tribunal therefore considered whether the visa applicants can be said, at the time of decision, to ‘continue’ to meet cl.103.211 as the parents of a settled Australian citizen. In one sense, the visa applicants ‘again’ meet rather than ”continue” to meet the requirement at the time of decision. However, following the guidance in Xiang v MIMIA (2004) 81 ALD 301 about the interpretation of ‘continuing’, the Tribunal considers that it is reasonable to assess the visa applicants as continuing to meet the criterion even though there may have 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.

24. The Tribunal is therefore satisfied and finds that at the time of decision, the visa applicants continue to satisfy the criterion in cl.103.211 and therefore satisfy cl.103.221 and both meet these primary criteria for the visa for which they both applied.

    DECISION

25. The Tribunal remits the application 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.

    ·cl.103.221 of Schedule 2 to the Regulations.

    Susan Trotter
    Member