1507278 (Migration)

[2016] AATA 3621

1507278 (Migration) [2016] AATA 3621 (31 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Kar Yan Alison Yam

VISA APPLICANT:  Mr Tak Fai Ronald Yam

CASE NUMBER:  1507278

DIBP REFERENCE(S):  01004619

MEMBER:Jennifer Ciantar

DATE:31 March 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Return (Residence) (Class BB) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 155 (Five Year Resident Return) visa:

·cl.155.212(3) of Schedule 2 to the Regulations;

Statement made on 31 March 2016 at 3:06pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 March 2015 to refuse to grant the visa applicant (the applicant) a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 6 March 2015. At the time of application, Class BB contained two subclasses – Subclass 155 (Five Year Resident Return) and Subclass 157 (Three Month Resident Return). In this case, claims have been advanced in respect of Subclass 155. The criteria for a Subclass 155 visa are set out in Part 155 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.155.212(3) because the delegate was not satisfied that the applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.

4. The review applicant appeared before the Tribunal on 9 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. At the time of application, the applicant must meet one of the alternative requirements set out in cl.155.212. These requirements essentially relate to the applicant being lawfully present in Australia for a certain time before the visa application, having substantial ties with Australia or being a member of the family unit of a person who meets these requirements.

7. In this case, the applicant is seeking to meet cl.155.212(3). The decision record, which the applicant provided to the Tribunal, indicates that the visa applicant has spent a total of 60 days in Australia in the last 5 years. He has held a Resident Return visa since 1994 but has never lived in Australia. Since the grant of the last visa, he has spent 8 days in Australia. The applicant does not claim to meet any of the other subclauses in cl.155.212. As the applicant was outside Australia at the time of application, the applicant cannot meet cl.155.212(3A).

   Does the applicant meet the substantial ties criterion?

8. Subclause 155.212(3), as extracted in the attachment to this decision, requires that if the applicant is outside Australia at the time of application, the Tribunal must be satisfied that he or she has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.

9. Additionally, the applicant must have a particular residency/citizenship status or history, and not have been absent from Australia for a prescribed period, unless there are compelling reasons for the absence.

   Does the applicant have substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia?

10. The applicant provided additional information to the Tribunal. The review applicant submitted that her father, the visa applicant, migrated to Australia with her grandparents in 1992. Her grandfather was a migration agent and he asked the visa applicant to travel between Australia and Hong Kong to help with the business. The visa applicant and his father enriched the lives of many families who made Australia home. The family returned to Hong Kong in 1999 to care for the grandmother and the visa applicant took up full-time employment as an accountant in Hong Kong. He became president of CPA Australia’s Greater China region in 2014 and he is still a member of the divisional council. The visa applicant plans to live in Australia permanently near his brother’s family, his brother in law’s family and near his close friend and former partner. He recently purchased a property in Brisbane through the company owned by his wife and daughter and intends to live there on its completion.

11. The visa applicant has a wife and daughter who are Australian citizens but neither resides in Australia and the applicant has said he has no intention of residing in Australia at least until his mother passes away and/or his retirement.

12. The applicant is a member of CPA (Australia) and has been past president but the applicant is not currently conducting business in Australia. There is a certificate of registration of a company in the names of the applicant’s wife and daughter. The applicant intends to buy a property in Australia.

13. At hearing, the review applicant told the Tribunal that she believes the visa applicant has substantial business and personal ties to Australia that are of benefit to Australia because her parents have a company registered in Australia which owns an apartment to be completed by June 2016. Her parents intend for their company to purchase other investment properties, which will provide them with rental income to support their retirement. However, the visa applicant will be unable to purchase further properties unless he has permanent residence.

14. The visa applicant was also the president of the Greater China Council of CPA Australia in 2014 and is now a member of the Council which elects the directors of CPA Australia. He is also a member of the professional development committee and is still a member of the Greater China Council, which generates income for Australia. The visa applicant also assists Australian graduates to obtain employment in Hong Kong.

15. The visa applicant also has family in Australia including his wife’s brother and his own brother. The visa applicant wants to retire in Australia as this is where the majority of his family is located.

16. The review applicant stated that she is currently on secondment to New York but she intends to return to Hong Kong in a few months’ time. She would accompany her parents to Australia on her father’s retirement as she would be able to obtain employment in Australia with her current employer, Deloittes. The review applicant lived in Australia from 2005 until 2010 when she attended university and during this period, her mother travel back and forth between Hong Kong and Australia.

17. The visa applicant stated that he was last granted a resident return visa on 14 March 2014 and it was in effect for 12 months. While he held this visa he attended a meeting of CPA Australia in Melbourne in August 2014. He also came to Australia in June 2015 for about a week to visit his wife’s brother but he is not sure of the type of visa that he held at that time. He intends to return to Australia in mid-2016 when the apartment is completed. The visa applicant purchased this property in 2014 and planned to rent it out but construction was delayed. He also plans to purchase further investment properties in order to generate rental income and he has begun researching suitable properties in Melbourne, Adelaide and Brisbane.

18. The visa applicant stated that he plans to retire in June 2017 and he has formally advised his employer of his plan. Then he will return to live in Australia with his wife and they will reside in the unit in Brisbane. The applicant confirmed that he provides assistance to his mother aged 82 and who lives in Hong Kong. The visa applicant has three younger brothers who also live in Hong Kong and they will have to provide ongoing support to their mother if the visa applicant moves to Australia. The visa applicant’s mother is quite frail but she lives on her own and the family has hired a maid and a nurse to care for her. The visa applicant has not lived with his mother and she is located about a half hour drive away from him.

19. In Australia, the visa applicant’s wife has two brothers. One of the visa applicant’s own brothers travels back and forth between Adelaide where his daughter is studying and Hong Kong where his primary residence is located.

20. The visa applicant provided information about his current involvement in CPA Australia. The Tribunal explained that it has to consider whether, at time of application in March 2015, the applicant has substantial business ties that are of benefit to Australia. By this time, the applicant was no longer president of the Greater China Council of CPA Australia. The applicant stated that in 2015 he was elected as the regional representative to sit on the selection board that elects directors for CPA Australia and he will hold this position for four years. It requires him to attend meetings in Melbourne. He is still a member of the Greater China Regional Council. He is also a member of the professional development committee which plans seminars and workshops for its Hong Kong members, some of whom are Australians. The review applicant commented that she is also a member of CPA Australia and she is aware that the professional development for the Hong Kong members includes keeping those members updated about developments in Australian accountancy practices and law. The visa applicant stated that his membership of CPA Australia arises from studies he did in Australia and he joined CPA Australia about 10 years ago. Also, he has been involved annually in a career expo sponsored by CPA Australia at which they provide information to about 1000 graduates about employment opportunities.

21. The visa applicant also stated that he was recently invited by the Premier of South Australia to assist in the establishment of the South Australia Club in Hong Kong, to promote tourism and business investment in South Australia. He has provided a copy of the Premier’s invitation to the Tribunal. The applicant stated that he has had meetings with the South Australian Trade Office located in Hong Kong and he has approached individuals based in Hong Kong to assist in the promotion of trade and investment in South Australia. He has also been involved with the Queensland and Victorian trade offices as they approached him to introduce potential investors to them.

22. The Tribunal invited the applicant to provide further written information about his business activities which are of benefit to Australia, in which he has been engaged since the time lodged the visa application.

23. On 24 March 2016 the applicant provided the Tribunal with further information:

    ·     a letter dated 15 March 2016 from Mr Jeff Hughes, Chief Operating Officer – Member Services, CPA Australia, which confirms the information provided by the visa applicant about his current involvement in CPA Australia;

    ·     a letter dated 23 July 2015 from the Premier of South Australia inviting the visa applicant to become a founding member of the South Australia Club in Hong Kong, and evidence of membership. The Club has the purpose of growing the State’s global business network and promoting South Australia;

    ·     a letter dated 18 March 2016 from Karl Lau, chief Executive, Chinese YMCA of Hong Kong which states that the visa applicant is the Honorary Treasurer and he has been instrumental in the earmarking of Melbourne as the site for the development of a possible $50m investment project. He also linked the organisation to the Victorian Government Business Office in Hong Kong and the “Study Melbourne Campaign”;

    ·     a letter from Mr Freddy Yip Hing Ning, Managing Director, Goldjoy Travel Ltd regarding the applicant’s assistance in linking him to the Queensland Trade Office in Hong Kong regarding a resort he is developing in Queensland.

24. The Tribunal notes that the Department’s policy interprets substantial business ties as meaning that an applicant needs to have an ownership interest in a business and be involved in the management of the business. However, this is not a requirement in the Regulations. The Tribunal has taken into account the visa applicant’s current role in CPA Australia on its professional development committee and Representative Council. The Tribunal accepts that the applicant was invited to be a founding member of the South Australia Club of Hong Kong in recognition of his active interest in the ongoing development of South Australia. The Tribunal also accepts that the applicant has current relationships with the Victorian Government Business Office in Hong Kong and the Queensland Trade Office in Hong Kong.  The Tribunal accepts that the applicant’s involvement in CPA Australia enhances links between Australia and Hong Kong and that the applicant is involved on an ongoing basis in transferring knowledge about Australia to investors, and about accountancy practices in Australia and employment opportunities to junior accountants and graduates.

25. Accordingly, the Tribunal is satisfied that at the time of application the applicant had substantial business ties with Australia that are of benefit to Australia.

    Does the applicant meet the prescribed residency requirements?

26. In addition to having substantial ties to Australia, cl.155.212(3) requires that the applicant either:

    ·holds a permanent visa or last left Australia as a permanent resident or citizen (but is no longer a citizen), and has not been continuously absent from Australia for 5 years or more immediately before the visa application (unless there are compelling reasons for the absence); or

    ·was an Australian citizen or permanent resident less than 10 years before the application, and has not been absent from Australia for periods totalling more than 5 years since last departing Australia as a citizen or permanent resident (unless there are compelling reasons for the absence).

27. In this context, the Federal Court has held that ‘compelling’ in its wide, ordinary meaning means ‘forceful’, and forceful reasons for an absence may involve physical, legal or moral necessity or may, by reason of their forcefulness, be convincing. The reasons need not be confined to those incorporating an involuntary element, involving circumstances beyond a person’s control, involving physical or legal necessity, or circumstances such as those referred to in the Department’s guidelines. The expression ‘compelling reasons for the absence’ refers to the applicant’s absence and it is the applicant who must have been ‘compelled’ by the reasons for his or her absence, and the Tribunal is entitled to make a judgment as to whether the reasons for the absence are forceful, and therefore convincing: Lorenzo Paduano v MIMIA [2005] FCA 211 at [37], [41].

28. The legislation speaks of not being absent from Australia for a continuous period of 5 years or more immediately before the application.

29. The visa applicant held a Subclass 155 visa from 14 March 2014 to 14 March 2015. In the period that he held this visa, the visa applicant visited Australia from 18 April 2014 to 22 April 2014 and from 27 September 2014 to 1 October 2014. Previously, the visa applicant had visited Australia for short periods, mostly a few days, on about 9 occasions in the 5 years before the visa application was lodged.

30. He has since been granted a Subclass 601 visitor visa in effect from 5 June 2015 to 5 June 2016. Movement records indicate that the visa applicant returned to Australia from 28 June 2015 to 2 July 2015 and from 13 August 2015 to 15 August 2015 as the holder of a Subclass 601 visa. However, at the time of application in March 2015, the Tribunal is satisfied that the visa applicant had last departed Australia as a permanent resident, as his last departure before applying for the visa was on 18 February 2014, as the holder of a Subclass 155 visa.

31. The visa applicant was in Australia on about 11 occasions for brief periods in the previous five years.  Although the visits are of short duration nevertheless, the visa applicant has been in Australia in the five years before the application. The Tribunal finds that the visa applicant was not absent for a continuous period of 5 years immediately before the visa application was made and that at the time of application, he had last departed Australia as a permanent resident. The Tribunal is satisfied that the visa applicant meets the requirements of cl.155.212(3)(a).

32. Accordingly, the Tribunal is satisfied that at the time of application, the visa applicant meets the prescribed residency requirements.

33. Given the findings above, the visa applicant meets cl.155.212(3).

34. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 155 visa.

    DECISION

35. The Tribunal remits the application for a Return (Residence) (Class BB) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 155 (Five Year Resident Return) visa:

    ·cl.155.212(3) of Schedule 2 to the Regulations; and

    Jennifer Ciantar
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    Schedule 2, Part 155

    …

    155.212(1)     The applicant meets the requirements of subclause (2), (3), (3A) or (4).

    …

    (3)The applicant meets the requirements of this subclause if the applicant is outside Australia, and the Minister is satisfied that the applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia, and the applicant:

    (a)has not been absent from Australia for a continuous period of 5 years or more immediately before the application for the visa, unless there are compelling reasons for the absence, and the applicant:

    (i)holds a permanent visa; or

    (ii)last departed Australia as an Australian permanent resident; or

    (iii)last departed Australia as an Australian citizen, but has subsequently lost or renounced Australian citizenship; or

    (b)was an Australian citizen, or an Australian permanent resident, less than 10 years before the application, and has not been absent from Australia for a period of, or periods that total, more than 5 years in the period from the date that the applicant last departed Australia as an Australian citizen or Australian permanent resident to the date of the application, unless there are compelling reasons for the absence.