By Karl Konrad
Since many of the suspended 886 applications have begun their processing again, we often receive enquiries in relation to the circumstances of their sponsor who have often moved offshore for a period of time.
Sponsors for the 886 visa and others like the 489 Skilled Regional Provisional-(Designated Area) visa (previously 487 Skilled Regional Sponsored ( Designated Area visa), requires the sponsor to meet certain criteria at the time the visa was lodged (before 01/07/10 Sponsorship was time of decision) and then again at the time of the decision is made. In the case of the old 886 files still being processed this can be years before the two stages.
886 and 487 (former 489)'s sponsorship/ nomination was time of decision till 30/06/10 so they can add or change sponsorship or state nomination when the time of decision comes around.
Usually Resident
At the time of the decision, when the case officer is considering the application, they will look at whether the sponsor is "usually resident" in Australia. This term is not defined in migration law so the immigration department and applicants must turn to what the courts have decided it should mean.
In one case the judge found a person must meet two essential elements to be considered usually resident in a particular place;
1) Presence -have a physical presence in a particular place (as indicated by where a person maintains a home, eats and sleeps, even if this is in hotels or a yacht), and;
2) Intent -have the intention to treat that place as a home for at least the time being but not necessarily forever.
Of course to be an eligible sponsor you must be at least an Australian Permanent resident or an Australian Citizen and at least 18 years old. There is little doubt case officers will consider Australian Citizens as usually resident but it gets a little trickier when the sponsor is a Permanent Resident but is currently residing offshore and has been doing so for some time.
A person who has never entered Australia could not be found to be usually resident in Australia as they have never established their physical presence in Australia.
Under the current DIBP policy, it may be accepted that the sponsor is usually resident in Australia in the absence of information that suggests otherwise if the sponsor:
* holds a permanent visa and
* is residing in or has previously resided in Australia.
Settled
When it comes to sponsoring your parents to migrate to Australia (and some other visas which require sponsorship) there is a higher level of residence required and this is defined in the regulations as "settled".
Again there are two levels of evidence required under the DIBP policy when it comes to assessing Australian Permanent Residents and Eligible New Zealand Citizens compared to an Australian Citizen.
The law requires "settled" to mean 'lawfully resident in Australia for a reasonable period which under current policy is considered to be 2 years.
'Lawfully resident' usually includes periods of lawful residence, for example, a sponsor may arrive initially on a Student or a Temporary Work (Skilled) visa before later on becoming a permanent resident. This can also include periods on Bridging visas that are related to events such as making visa application or a tribunal/judicial review.
Australian Citizens
In deciding if an Australian citizen is 'settled' a shorter period of lawful residence may be considered according to DIBP policy, if:
"there are compassionate and compelling circumstances or
the Australian citizen, having resided overseas for a lengthy period, has returned to Australia and wishes to sponsor family members, but may be precluded from doing so due to the "two year" policy requirement.
As a matter of policy, the shorter period should be at least three months' residence (as at time of visa application)."
