Zhang (Migration)

This matter concerned an application for Parent (Migrant) (Class AX) visas, Subclass 103, by the visa applicants, who are the parents of the review applicant. The central dispute revolved around whether the review applicant, an Australian citizen, was considered "settled" in Australia at the time of the visa application, a prerequisite for his parents to be granted the visa. The decision was made by Susan Trotter, a Member of the Tribunal.

The legal issues before the Tribunal were whether the review applicant was a "settled" Australian citizen within the meaning of the relevant regulations at the time of the visa application, and consequently, whether the visa applicants met the criteria for a Subclass 103 Parent visa, specifically clause 103.211 and 103.221. The Tribunal was required to interpret the meaning of "settled" in the context of the review applicant's extended absence from Australia to care for his parents and in-laws in China, while also considering his continued business and property interests in Australia.

The Tribunal reasoned that while departmental policy, such as that found in the Procedures Advice Manual (PAM3), provides guidance, it is not binding. The Tribunal must consider the specific circumstances of each case. The evidence demonstrated that the review applicant had been an Australian citizen since 2006 and had significant ties to Australia, including business interests, property ownership, and financial assets. Despite an extended period of absence from Australia between 2011 and 2017 due to family health issues, the Tribunal found that the review applicant had maintained connections with Australia and had always intended to return. Crucially, the review applicant had elected for his children to hold Australian citizenship, reflecting his intention to re-establish himself in Australia. The Tribunal concluded that the review applicant was a settled Australian citizen at the time of the visa application.

Consequently, the Tribunal found that the visa applicants met the criteria for the Subclass 103 Parent visa. The Tribunal remitted the application for reconsideration with a direction that the visa applicants satisfied clauses 103.211 and 103.221 of the Regulations.