Success Story 3 - Complex Parent Visa Application
Our client was originally refused (without our assistance) a Parent visa to Australia on the basis that her son was not permanently resident in Australia at the time her visa application was made and therefore did not meet the balance of family test.
Our office made an application for review to the Migration Review Tribunal which was successful for the following reasons:
- The issue under review was whether or not our client’s son may be considered usually resident in Australia to allow him to meet the Balance of Family Test as at the time of application was based overseas for a considerable amount of time.
- ‘Settled’ is defined in the Migration Regulations 1994 as follows – ‘in relation to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means lawfully resident for a reasonable period’.
- The Department of Immigration and Citizenship issued an acceptance in writing that our client meets the requirement of being settled in Australia for the approved of the sponsorship but the application under review was refused on the basis that our client’s son was considered by the Department to not be usually resident in Australia at the time our client’s visa application was made. We argued that it is difficult for a person to be settled in Australia (as accepted by the Department) in accordance with the legal definition of the term and at the same time not be permanently resident in Australia.
- Despite the extensive nature of Australian immigration legislation and policy, the term ‘permanent resident’ is not defined in the current Migration Regulations and we argued this point in our clients favour.
- Notwithstanding the above, the issue at stake in our clients review application was whether or not she met the balance of family test which requires that each of the children of the parent is either lawfully and permanently resident in Australia or are usually resident in Australia, is greater than the greatest number of children of the parent who are resident in any single overseas country.
- Our clients son is educated to a PhD level and works in a highly technical field where he was been unable to obtain employment in Australia. In Australia, he resorted to driving taxi’s to make a living and whilst overseas, he has been actively involved in ground breaking medical research which may be considered as beneficial on a global scale.
- We also argued that the Global Financial Crisis also affected our client’s son in that he owns a property overseas and has been servicing a mortgage that exceeds the value of his property. He has been forced to remain overseas indefinitely to avoid his financial failure.
- All the above matters were well documented and provided as evidence to the Migration Review Tribunal who have accepted that it could not be said our clients son is usually resident overseas when we demonstrated his clear intention to return to Australia as soon as appropriate employment opportunities became available to him.
As a result of the above, the Migration Review Tribunal remitted the application for a Parent Visa for reconsideration that our client meets the criteria in dispute for the grant of her Australian visa.
We are pleased to confirm this client has since been granted an Australian visa and is now a permanent resident of Australia.