Certain visa applications; most notably applications for parent visas and remaining relative visas, require applicants to have what is called a “settled sponsor” at the time the application is lodged. The big question is, what does “settled” mean?
Australia’s migration legislation provides that “in relation to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, (settled) means lawfully resident in Australia for a reasonable period.”
Unfortunately, “reasonable period” is not also defined within legislation. Rather within Department of Immigration policy we find that:
” … it can be said that in normal circumstances, two years is considered to be a reasonable period but there may be exceptions and the facts of each case must be considered on a reasonable basis.
For Australian citizen sponsors a lesser eligibility period may be considered when assessing the “settled” criterion, where there are compassionate or compelling circumstances.
As a matter of policy, the eligibility period for Australian citizen sponsors may be regarded as at least three months residence.
The eligibility period for the “settled” requirement must be lawful residence.
This means that legal temporary residence as well as permanent residence may be counted, if necessary, towards making up the period.”
Note: Periods of residence in Australia as a lawful temporary residency visaholder can be included in a consideration of whether the sponsor is “settled”. This allows the period of time an individual has been living in Australia as a holder of – say – a Skilled Independent Regional (Provisional) visa, or a 457 employer sponsored visa to be factored into the question of whether the individual is a “settled sponsor.”
A question we are often asked is whether an individual who holds a permanent residency visa can sponsor his or her parent/s for the grant of a Contributory Parent visa within 2 years of the intending sponsor first living in Australia. As is perhaps apparent from the above, the real question to be answered is whether the intending sponsor has been lawfully residing in Australia for a reasonable period.
Perhaps unsurprisingly there have been a few appeal cases in this area, where a Department of Immigration case officer has initially considered the sponsor was not “settled.” For example, see:
In the first case the applicant (from South Africa) was applying for a subclass 143 Contributory Parent visa. The sponsoring child was the holder of a subclass 136 Skilled Independent visa, who had validated her new 136 visa on a brief holiday to Australia in May/June 2002 prior to moving to live in Australia in March 2003.
Her parents applied for the grant of permanent subclass 143 Contributory Parent visas in November 2003, some 8 months later.
The finer details of the sponsor’s background are shown in the above link, but the key point to note is that the review tribunal found that:
” …if a person has established the centre of his or her family life or his or her interests and affairs in Australia that person may be said to be settled here. The more ties the person has with Australia, the more that conclusion will be supported. What is a reasonable period for the purpose of the definition of settled will thus depend on the evidence relating to the steps the person in question has taken to establish his or her home in Australia. A relatively short period may be sufficient if those steps are unequivocal. On the other hand, a person might spend a fairly lengthy period travelling around Australia but always with a home elsewhere and no intention of adopting Australia as his or her home. Such a person would not be regarded as settled even though his or her period of residence might exceed the two year period suggested by policy.”
The second case discusses an application for the grant of a Contributory Aged Parent visa, subclass 864 by a husband and wife from the UK who were in Australia as the holders of long stay tourist visas at the time their subclass 864 application was lodged.
The sponsor was the daughter of the applicants and had been residing in Australia as the holder of a permanent residency visa for some 6 to 7 months at the time her parents’ 864 visa application was lodged with the Department of Immigration. She had been considered by the assessing Department of Immigration case officer to have failed to meet the requirement to be a “settled sponsor.” The daughter had become an Australian citizen some time later.
In this case it was found that:
- while the sponsor at the time of application was not an Australian citizen, it was reasonable that this development should be expected to be taken as a relevant consideration now that she and all her family members are Australia citizens
- having regard to the circumstances of the sponsor and the evidence she had provided as well as the benefit of the passage of time, the Tribunal was satisfied that the sponsor had established the centre of her family life and her affairs in Australia
- the evidence cited supported the sponsor’s claim that when she travelled to Australia as the holder of a permanent visa accompanied by her parents, she and her family were settling permanently in Australia
- the evidence by the sponsor of the purchase of two homes, all her family members having applied for (and been granted) Australian citizenship as well as her ongoing full-time employment confirmed that she had established her life permanently in Australia
- it was found that the correct and preferable decision in this case was that the sponsor was a settled Australian permanent resident at the time of application
- as such the visa applicants at the time of application were aged parents of a person who was a settled Australian permanent resident
So what can parents and their children who intend to act as sponsors take from the above?
First, that although the two year “rule” for acting as a sponsor exists as a matter of Department of Immigration policy, it is not set in stone. Sponsors may have established a new life in Australia with a quality of permanence that gives both sponsor and their parents comfort that the sponsor is indeed now settled or usually resident in Australia.
Each case would need to be looked at on its own merits.
Second, that parents who are contemplating applying within 2 years of a sponsoring child’s arrival in Australia should ensure their child’s attachments to Australia are reasonably significant and established. These might include:
- entering into the purchase or long term rental of property in which one will reside in Australia
- personal goods and effects in Australia
- purchase of a motor vehicle
- children enrolled in school
- employment in Australia
- registration with the Australian Taxation Office and paying one’s taxes in Australia as a tax resident
The risk nevertheless exists that a Department of Immigration case officer could challenge the settled status of the sponsor – in our view parents who apply for a Contributory Parent visa within a fairly short period of their sponsor’s arrival in Australia (ie within 2 years) should reconcile themselves to this possibility, and ensure there is sufficient documented evidence available should the need arise. Indeed, we suggest that such documentation might be included with the visa application to head off any concerns the Department of Immigration case officer might have as to the sponsor’s settled status.