Certain visa applications – including applications for parent visas – require the applicant to have what is called a “settled sponsor” at the time the application is lodged.
But 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, “a reasonable period” is not also defined within legislation.
Rather the subject of the settled status of a sponsor is discussed within Department of Immigration policy, which has been updated and expanded quite significantly recently, with what appears at face value to have been a relaxation of the settled provisions:
“Under policy, assessment of “settled” at time of visa application can be considered met unless there are significant extended periods of absence prior to making the visa application (for example, the sponsor has been absent from Australia for two years immediately prior to the date of application, and is outside Australia at the time of application).
Under policy, at time of decision, there are three categories within which a sponsor can meet the “settled” requirement.
- Category 1
If the sponsor has been lawfully resident in Australia for two years, (as at time of visa application, discounting short trips outside Australia for up to four months), this is generally considered to be a “reasonable period”.
Note: A sponsor could come within this category even if they are outside Australia at the time the visa application is made.
- Category 2
If the sponsor is currently in Australia but has been outside Australia for more than four months in the two-year period immediately preceding the date the visa application was made, they must provide some documentary evidence showing that they are currently settled in Australia.
Seven examples of evidence are:
- Evidence of ongoing employment – for example, payslips; end-of-year tax assessment statement; official letter from employer; business ownership. If not employed, evidence of the sponsor’s partner’s employment/business ownership/income in Australia.
- Evidence of ownership of a house or a current lease agreement.
- If the sponsor has school-age children, evidence that they are attending school – for example, a letter from the relevant Australian education provider.
- Bank statements showing a history of funds held in Australia. Little weight should be given to recent bank transfers.
- Evidence that shows reasons for prolonged absence from Australia – as two examples:
- Documents showing that the sponsor has been caring for a sick relative outside Australia
- A letter from the sponsor’s employer outlining the nature of the sponsor’s work that may require long business trips or extended work placements outside Australia.
- If the sponsor has pre-school-age children, evidence that advance arrangements have been made to enrol their children in an Australian school – for example, payment of enrolment fees or enrolment registration fees.
- Evidence that the sponsor’s children are Australian citizens
- Category 3
If the sponsor is not in Australia, and has not been in Australia for the full two years preceding the application (discounting short trips to Australia under four months), they must provide some documentary evidence as to the reason for the absence and establish that they meet the ‘settled’ requirement.
Nine examples of evidence are:
- Evidence from the sponsor’s employer that the sponsor has been posted by an Australian company or government organisation for a temporary finite period, and as a matter of established business/government practice, will return to employment in Australia at the end of the finite period.
- Evidence from the sponsor’s employer of extended employment outside Australia for an Australian company/government organisation on an ongoing basis, with a direct link to Australia – for example, wages are paid by the Australian company/government organisation/international company with a base in Australia, and the sponsor’s taxes are paid to the Australian government.
- Evidence of ownership of a residence in Australia or a signed lease agreement to show the sponsor intends to recommence residing in Australia
- If not employed, evidence of the sponsor’s partner’s employment/business ownership/income in Australia, or evidence that the sponsor’s partner has been posted by an Australian company or government organisation for a temporary finite period, and as a matter of established business/government practice, will return to employment in Australia at the end of the finite period.
- If the sponsor has school-age children, evidence that they are attending school – for example, a letter from the relevant Australian education provider.
- If the sponsor has pre-school-age children, evidence that advance arrangements have been made to enrol their children in an Australian school – for example, payment of enrolment fees or enrolment registration fees.
- Bank statements showing a history of funds held in Australia. Little weight should be given to recent bank transfers.
- Evidence that shows reasons for prolonged absence from Australia – as two examples:
- documents (such as medical certificates) showing that the sponsor has been caring for a sick relative outside Australia
- a letter from the sponsor’s employer outlining the nature of the sponsor’s work that may require long business trips or extended work placements outside Australia.
- Evidence that the sponsor’s children are Australian citizens
Visa processing officers can consider the time spent in Australia immediately preceding two years before the date of visa application as a “reasonable period” based on the documentation provided.
Visa processing officers must determine the weight of each piece of documentation, and whether, as a whole, the documentation provided demonstrates that the sponsor is settled.”
For Australian citizen sponsors a lesser eligibility period may be considered when assessing the “settled” criterion, where there are compassionate or compelling circumstances, or when an Australian citizen has resided overseas for a lengthy period, has returned to Australia, and wishes to sponsor family members.
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 provisional visa or a subclass 457 employer sponsored visa to be included in considering 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 Parent visa within 2 years of the intending sponsor first living in Australia.
As is perhaps apparent from the above, the question to be answered is whether an intending sponsor has been lawfully residing in Australia for a reasonable period.
Reference should be made to the updated Department of Immigration policy discussed above at first instance.
If this is inconclusive reference might be had to 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 a child who intends to act as the sponsor take from the above?
Primarily, that parents who are contemplating applying for a parent visa within 2 years of a sponsoring child’s arrival in Australia should ensure their child’s attachments to Australia are reasonably significant and established (as discussed in the policy extracts above), and are capable of being documented.
In summary, there is a risk of an issue arising with the settled status of the sponsor when a parent applies for a Contributory Parent visa within a fairly short period of their sponsor’s arrival in Australia.
However, in our opinion the recently expanded policy guidance should provide a measure of comfort where a parent wants to join a child in Australia soon after the child has migrated to Australia.
In such a circumstance lodging documentation to validate the sponsor’s settled status in accordance with the Department of Immigration’s policy material will be key to reducing the risk of an adverse decision.
If you are a parent and would like to discuss lodging an application for a Contributory Parent visa less than 2 years after your sponsor’s arrival in Australia please complete the enquiry form on this page for a free initial discussion on how Go Matilda Visas can bring together a fully documented application for a parent visa.
