Complex Parent Visa Application

Problem 

We were approached by our client following an unsuccessful attempt to apply for a Parent visa. The visa application was refused on the basis that our client’s child was not permanently resident in Australia and therefore could not satisfy the balance of family test. 

A review of the decision was sought with the Migration Review Tribunal. 

Facts 

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 confirmed in writing that our client meets the requirement of being settled in Australia for the approved of the sponsorship. However, the application under review was refused on the basis that our client’s son was not considered by the Department to be usually resident in Australia. 

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 considered not permanently resident in Australia.

Despite the extensive nature of Australian immigration legislation and policy, the term ‘permanent resident’ was not defined in the Migration Regulations at the time. This enabled us to advance arguments in favour of our client. 

Notwithstanding the above, the issue under consideration in the review application was whether or not our client met the balance of family test. The balance of family test 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 client’s son is educated to a PhD level and works in a highly technical field where he has been unable to obtain employment in Australia. In Australia, he resorted to driving taxis to make a living and whilst overseas, he has been actively involved in groundbreaking medical research which may be considered as beneficial on a global scale.

The Global Financial Crisis which occurred shortly beforehand resulted in the child servicing a US mortgage that exceeded the value of his property. As a result, he was 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 client’s 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.

Outcome 

The Migration Review Tribunal remitted the application for a Parent visa for reconsideration that our client met the criteria for the grant of a Parent visa. We confirm that our client’s Parent visa has since been approved and that she is now an Australian citizen.