1508755 (Migration)

[2016] AATA 3624

1508755 (Migration) [2016] AATA 3624 (5 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Amila Jayasinghe

VISA APPLICANTS:  Mr Wanniarachchige Ravi Kanchana Perera
Ms Hirtanthi Dilrukshi Perera
Miss Wanniarachchige Chirathi Namini Perera
Master Wanniarachchige Akila Buwaneka Perera
Master Wanniarachchige Anupa Buvanaja Perera

CASE NUMBER:  1508755

DIBP REFERENCE(S):  CLF2008/56713

MEMBER:Alan Duri

DATE:5 April 2016

PLACE OF DECISION:  Sydney

DECISION:The tribunal affirms the decisions not to grant the visa applicants Designated Area-sponsored (Provisional) (Class UZ) visas.

Statement made on 05 April 2016 at 1:14pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Perera is a Sri Lankan citizen. He is married with three children.

2. On 29 August 2007 Mr Perera applied for a Skilled - Designated Area-sponsored (Provisional) (Class UZ) Subclass 496 visa under s.65 of the Migration Act 1958 (the Act).

3. The sponsor of the application is Mr Jayasinghe.

4. Mr Jayasinghe was born in 1971 in Sri Lanka and he is an Australian citizen.

5. On 22 April 2015 the delegate refused to grant the visa on the basis that the sponsor Mr Jayasinghe departed Australia on 16 October 2011 and has not returned.  Accordingly the delegate was not satisfied that cl.496.223 was met because the sponsor was no longer resident in the designated area.

   Hearing

6. The review applicant Mr Jayasinghe appeared before the tribunal on 4 April 2016 to give evidence and present arguments.

7. Mr Jayasinghe was represented by his migration agent Ms Marina Collins.

8. Mr Jayasinghe told the tribunal that he is currently living in Sri Lanka.  He explained that after coming to Australia he found it difficult to obtain suitable employment.  Mr Jayasinghe said that he found a job in Sri Lanka in a mining company in 2009 and spent a few years travelling backwards and forwards from Australia to Sri Lanka.  Since 2011 he has been living in Sri Lanka and working as a CEO of a mining company.  He owns a property in Sri Lanka and he does not own any property in Australia.  Mr Jayasinghe stated that his wife and four children are in Sri Lanka, as are his parents and brother.  Mr Jayasinghe has no immediate family in Australia. However he added that his brother intends to move to Australia later this year.    

9. Mr Jayasinghe told the tribunal that he intends to return and live in Melbourne in November 2016 because of his daughter’s education.  He stated that he is in the process of selling his Sri Lankan property.  Mr Jayasinghe added that his children are attending English language schools in Sri Lanka.  Mr Jayasinghe, who is an accountant by profession, intends to set up an IT company when he returns to Australia.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The Subclass 496 visa (as it was in 2007) required various sponsorship requirements.

11. At the time of application cl.496.213 provided:

    The sponsor:

    (a)    is resident in a designated area; and
    (b)    was resident in 1 or other of the designated areas throughout the period of 12 months immediately before Immigration receives the relevant sponsorship (except for short absences for the purposes of business or recreation).

12. Clause 496.111 provides that a designated area “means an area specified by an instrument in writing under item 6701 in Schedule 6 as a designated area”.  Item 6701 in turn provides throughout the period of two years immediately before the department receives the relevant sponsorship (except for short absences for the purposes of recreation or business), the sponsor has been resident in one or more of the areas specified by an instrument in writing for this item as designated areas for the purpose of this item.  GN 34 of 29 August 2001 sets out various postcodes considered to be designated areas.  Essentially areas outside Sydney, Newcastle, Wollongong, Brisbane and Perth are designated areas. 

13. At the time of decision cl.496.223 provides:

    The sponsor is still resident in a designated area.

14. Between 2007 and 2011 Mr Jayasinghe travelled in and out of Australia on numerous occasions.  He typically spent approximately two weeks in Australia and then one month offshore and so forth.  Since October 2011 Mr Jayasinghe has been offshore except from 13 October 2015 to 23 October 2015.  Mr Jayasinghe returned to Australia on 1 April 2016 apparently to attend the tribunal hearing and he indicated that he will be returning to Sri Lanka shortly.

15. Mr Jayasinghe and his family are currently living in Sri Lanka and have been so at least 2011.  Mr Jayasinghe has employment, property and his immediate family in Sri Lanka –and none in Australia. 

16. Mr Jayasinghe is an Australian citizen and gave evidence that he intends to return to Australia in November 2016 because of his children’s education.

17. The tribunal notes the department’s policy at PAMS3 on determining whether a person is resident in a designated area:

    The question of whether and for how long a sponsor has resided in a designated area of Australia is a criterion that defines access to the 496 visa. It is policy therefore that officers should sight satisfactory evidence of a sponsor’s whereabouts in Australia and the duration of their residence in that location. The onus to provide this evidence rests with the applicant and sponsor.

    Evidence may be in the form of documents demonstrating home ownership or tenancy, electoral enrolment, employment etc.

18. The policy indicates that there must be a physical presence in the designated area.

19. The department’s policy is supported by the wording of item 6701 in Schedule 6

    Throughout the period of 2 years immediately before Immigration receives the relevant sponsorship (except for short absences for the purposes of recreation or business), the sponsor has been resident in one or more of the areas specified by an instrument in writing for this item as designated areas for the purpose of this item

20. Given that item 6701 refers to short absences, the context of resident for a Subclass 496 visa clearly connotes physical presence in the designated area. Therefore the concept of residence for a Subclass 496 visa is somewhat narrower than the use of the word “resident” in other contexts. Case law has considered the concept of “residence” and “usually resident” in a variety of contexts. In Scargill v MIMIA [2003] FCAFC 116, the Full Court of the Federal Court considered the concept of usual residence in the context of a remaining relative visa application. The Court noted that the factors of physical residency and intention were “essential elements” in the notion of “usually resides”. However as noted above the use of the word “resident” in Subclass 496 visas is narrower than in other contexts because it requires residence in particular places in Australia. Clause 496.223 does not require “usual residence”.

21. Mr Jayasinghe is usually physically present in Sri Lanka.  He has no immediate family in a designated area.  He does not have employment in a designated area.  He does not own property in a designated area. 

22. Mr Jayasinghe may well have had an intention to at some stage to reside in a designated area in Australia.  However intention alone does not determine where a person usually resides at a particular point in time. As at the date of decision, given the factual circumstances set out Mr Jayasinghe cannot be said to be residing in a designated area in Australia.  This is notwithstanding his future intentions.      

23. Therefore cl.496.223 is not satisfied at the time of decision.

24. During the hearing it was noted that the department took an inordinate amount of time to make the primary decision by which stage Mr Jayasinghe had returned to Sri Lanka.  The suggestion was that had the decision have been made sooner, Mr Jayasinghe would still have been a resident in a designated area.  This may well have been the case, but the fact remains that as at the time decision Mr Jayasinghe is residing in (and has been so for five years) residing in Sri Lanka.  It was also suggested that the tribunal defer a decision until a later date in order to allow Mr Jayasinghe time to rearrange his affairs and return to Australia.  The tribunal declined to defer the decision.  The visa application was lodged nearly nine years ago.  Mr Jayasinghe has been on notice since the primary decision of 22 April 2015 that his residence was the issue.  Therefore the tribunal saw no utility in not making a decision given that it has sufficient information before it to make a decision.

    DECISION

25. The tribunal affirms the decisions not to grant the visa applicants Designated Area-sponsored (Provisional) (Class UZ) visas.

    Alan Duri
    Member