1509181 (Migration)

[2016] AATA 3625

1509181 (Migration) [2016] AATA 3625 (30 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Cissy Wai See Lai

VISA APPLICANT:  Mr Siu Lun Ko

CASE NUMBER:  1509181

DIBP REFERENCE(S):  01007441

MEMBER:Denise Connolly

DATE:30 March 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.

Statement made on 30 March 2016 at 5:06pm

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 8 July 2015 to refuse to grant the visa applicant a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied to the Department of Immigration for the visa on 25 June 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). Relevantly to this case, they include cl.155.212(3) which requires the visa applicant to have substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.

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

4. The review applicant appeared before the Tribunal on 29 March 2016, by conference telephone, to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Lawful presence/substantial ties

5. At the time of application, the visa 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.

6. In this case, the visa applicant is seeking to meet cl.155.212(3). He does not claim to meet any of the other subclauses in cl.155.212.  As the visa applicant was outside Australia at the time of application, he cannot meet cl.155.212(3A).

   Does the applicant meet the substantial ties criterion?

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

8. The visa applicant lodged his application in Hong Kong and was outside Australia at the time of application. He is married to the review applicant who is an Australian citizen. They have 2 children, Brian Ko, aged 16, and Danielle Ko, aged 13, who are also Australian citizens.

9. At the time of application evidence was provided that he had been granted Subclass 155 visas on 5 October 2004 and 8 April 2008.  He provided a written statement in which he submits that he has personal ties for applying for the visa. He stated that he is currently employed as the Sr VP Operations for Sun Hung Kai Financial Group (SHKF), the business of Mr Lee Seng Huang, who is also the Chairman of Mulpha Australia Ltd, a property developer in Australia and the independent executive director of Aveo Healthcare Ltd. Also SHKF set up a subsidiary company in Australia, Sun Hung Kai Financial Australia Pty Ltd in 2014. Also his spouse, a housewife in Hong Kong, is an Australian citizen. He indicated he is applying for the visa for family reasons as well as business.

10. The delegate considered his evidence but was not satisfied the visa applicant had demonstrated that he has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.

11. In July 2015, prior to the hearing, the review applicant provided a statement from the visa applicant repeating the information provided to the Department and also asserting that he is considering being seconded to SHKF’s Sydney office in 2016. He stated his wife and children are currently in Hong Kong but they are planning for the children to study in Melbourne in 2016. He stated the family were planning to travel to Melbourne in August 2015 for 14 days so that Brian could apply to start at a school in July 2016. They were also considering buying property in Melbourne.

12. In November 2015 the review applicant provided information indicating that Brian had been accepted into De La Salle College, Melbourne and he would start Year 10 in July 2016. Also they had applied for Danielle to start at Sacred Heart College, Melbourne in July 2016. The review applicant repeated that they intended to purchase property in Melbourne. She said they had purchased airfares for Brian and herself. She stated that the visa applicant was to be appointed as ‘Responsible Manager’ in Sun Hung Kai Australia Pty Ltd in Sydney in 2016 and that he is ‘very likely to be transferred’ to Sydney upon his successful application. She requested that he be granted the visa for another 1-2 years so that he can be united with her and the children.

13. The review applicant provided an online booking for flights in June 2016 for herself and the visa applicant indicating the fares had not been paid. She provided an Acceptance of Placement at De La Salle College for Brian and an Enrolment Fee and Registration form from Sacred Heart College for Danielle, indicating some fees had been paid.

14. In relation to the visa applicant’s employment in Australia the review applicant provided a Licence for Commercial Office relating to an office in Macquarie Street Sydney for the period 1 January 2014 to 31 December 2015. SHKF Australia leased the office from Aveo Group. She also provided a letter from Managing Director, SHK Private dated 12 January 2016 regarding a ‘potential position offer for the post of Office Manager in Sydney Office’ stating the visa applicant is currently employed as the Sr VP Operation in Hong Kong, however to cope with business development in Australia he is involved in the Australian business set up for SHKF Australia, located in Sydney. It states he is planning to fill the job opening in 2016.

15. On 10 March 2016 the review applicant provided a document from SHKF entitled ‘Seek approval for authorised signers for SHKF Australia Pty Ltd’ indicating the business in Australia is in the process of engaging different business partners and the board had resolved to appoint the visa applicant as an ‘authorised signer’ for bank and trading accounts.

16. At the hearing the Tribunal explained the requirements of cl.155.212(3). The review applicant confirmed that the visa applicant was not available to give his oral evidence but that she would be able to answer the Tribunal’s questions and provide evidence in relation to the provision.

17. The Tribunal asked about the visa applicant’s migration history. The review applicant said that he was granted a permanent visa a long time ago, in about 1997. However thereafter he has not spent long in Australia because he has been working in Hong Kong. They married in Hong Kong and their children, who are Australian citizens, were born there. She said that since 1997 he has visited Australia a few times, for a week or so each time, just for holidays.

18. The Tribunal asked about the visa applicant’s previous Subclass 155 visa applications. The review applicant acknowledged that the visa applicant has previously been granted resident return visas on the basis that he planned to return to Australia but he has not been able to find a job in Australia paying a sufficient salary. She confirmed that he is currently employed by SHKF in Hong Kong as the Sr VP Operations. The business has about 100 employees. However he has now secured a job and he plans to move to Australia.

19. The Tribunal asked about the position in Australia. The review applicant said the visa applicant will take up the position of Office Manager located in Sydney. She was not sure how many employees are located in Sydney but thinks there are 2 other managers working from the office. The Tribunal asked why the business needs another manager if it already has 2 located in Sydney. The review applicant thought the visa applicant might start another team to be based in Sydney. She agreed that the office is small but thought the company would employ more people. The Tribunal asked why the visa applicant has not started working in the position. The review applicant indicated there was an office but there had been a delay in applying for a licence. She said the visa applicant will start working in the Sydney office in April 2016. He will spend half his time in Sydney and half his time in Hong Kong for the next 6 months while he hands over his job in Hong Kong. He will be paid by the Hong Kong business for that 6 month period. The plan is that he will then move to Sydney for good. The review applicant confirmed the visa applicant has no other employment or business ties with Australia.

20. The Tribunal noted that the documents provided may not demonstrate that the visa applicant has substantial business or employment ties with Australia that are of benefit to Australia. It noted the Licence for Commercial Office expired in December 2015 and the other documents suggest a potential position offer but may not demonstrate a definite arrangement. The review applicant cited the 12 January 2016 letter and claimed the visa applicant intends to take the Sydney position.

21. The Tribunal asked about any personal ties the visa applicant has with Australia. The review applicant acknowledged that the visa applicant has lived in Hong Kong with her and the children, where he has worked, and that they own property in Hong Kong. However the family has now decided to move to Australia where the children will go to school. The Tribunal asked why the children did not commence school in Australia at the beginning of its academic year. She indicated that Brian had already started Year 10 in 2015 and that he wanted to finish Year 10 in Hong Kong and he will then go to Australia in July 2016 and repeat Year 10. This will give him confidence when he goes into Year 11 next year. Danielle has not started yet because she will follow Brian.

22. The Tribunal asked the review applicant about the plan to purchase property in Melbourne. The review applicant confirmed that they have not purchased a property. She indicated that they went to auctions when they were in Australia in August 2015. However they have changed their plans and will now rent. They still have their property in Hong Kong which they are renting out. She indicated they may still purchase a property in Australia.

23. The Tribunal raised its concern that the evidence regarding the visa applicant’s ties with Australia appears to be speculative at this stage as none of the purported ties are actually in place. The Tribunal noted that in the past the visa applicant has been granted resident return visas however he has not returned to reside in Australia. It indicated to the review applicant that it may be concerned the visa applicant and the family will not realise any of the plans proposed and he may not have substantial ties with Australia. The review applicant indicated that the ties are not yet established because of timing issues. In the past the visa applicant has not been able to secure employment with an adequate salary. However they have now paid deposits to the schools and they have obtained quotes to move their furniture to Australia. She claimed the move will take place in June 2016. First she and the children will stay with her parents in Melbourne and then they will rent near the children’s school. She plans, ultimately, for both children to attend the same high school, McKinnon. She indicated that, over the first 6 months, the visa applicant will live in Sydney for 2 weeks and then 2 weeks in Hong Kong. He will visit them in Melbourne on weekends.

24. The Tribunal asked the review applicant if she had any other evidence to give about the visa applicant’s ties with Australia. The review applicant acknowledged the family has been talking about moving to Australia for 15 years. However they are determined to do it this time. She acknowledged the visa applicant has strong ties to Hong Kong and that on about 4 occasions in the past he has told the Department that he intends to return to Australia, but he has not in fact moved. However she asserts that, now that he has a job here, he will move to Australia. She had no evidence to give in relation to cultural ties.

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

25. The Tribunal has considered whether the above evidence establishes that the visa applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia. The Tribunal accepts that the visa applicant is married to an Australian citizen and that his children are also Australian citizens. However the Tribunal notes that his spouse and children currently live in Hong Kong where the visa applicant continues to reside and work. The Tribunal also notes the review applicant’s evidence that, while in the past the visa applicant has asserted that he intends to return to Australia to reside, in fact, since 1997 he has only ever visited Australia for short periods of about 1 or 2 weeks.

26. The Tribunal has considered the review applicant’s evidence that the visa applicant intends to take up employment in Australia as the Office Manager for SHKF Australia. Overall it has some doubts that the visa applicant will in fact take this position in Sydney. It accepts the review applicant’s evidence that the visa applicant continues to be employed as the Sr VP Operations for SHKF and that the business employs about 100 employees.  It has concerns about the review applicant’s evidence that he will manage an office in Sydney where there may only be 2 other employees working. It considers the evidence about the plans to expand the Sydney office vague and unpersuasive. It notes that the Licence for Commercial Office expired in December 2015. It has considered the other documents provided indicating he has been offered the position and has been approved as an ‘authorised signer’ but does not consider those documents demonstrate that the visa applicant would need to be based in Sydney to undertake those duties. It notes the visa applicant will continue to be employed by the Hong Kong business even after he starts the Office Manager position. The Tribunal is not satisfied the evidence about the potential employment in Sydney demonstrates that the applicant has or will have substantial business or employment ties with Australia that are of benefit to Australia.

27. The Tribunal has also considered the evidence about the personal ties with Australia. It notes the evidence that Brian has been accepted by De La Salle College in Melbourne. It has taken into account the review applicant’s reasons why Brian and Danielle did not start at the beginning of Australia’s academic year. However it does not find this explanation persuasive and has some concerns that the family may not follow through on the plan for the children to start school in Australia. It is of the view that Brian, who started Year 10 in 2015 in Hong Kong, could have started Year 10 in 2016 in Australia with the same outcome. The Tribunal accepts that the applicant may have paid enrolment fees to the schools but does not consider these to be significant sums and is not satisfied the payments will necessarily result in the review applicant and the children moving to Australia. The Tribunal is not satisfied the review applicant’s evidence about the children’s enrolments in Australian schools demonstrates a substantial personal tie with Australia.

28. The review applicant has indicated in written submissions that the visa applicant intended to purchase property in Australia. The Tribunal notes however her oral evidence that they have now changed their plans and that to date no property has been purchased. The review applicant has stated that she and the children will initially stay with her parents and then they will rent in Melbourne.  The Tribunal is not satisfied the visa applicant has a property interest in Australia. It is not satisfied that the review applicant’s evidence about plans to purchase property in Australia demonstrates that the visa applicant has substantial personal ties with Australia.

29. The Tribunal accepts that the family has in the past contemplated moving to Australia but that the visa applicant has remained in Hong Kong where he has employment paying a sufficient salary. It takes into account the review applicant’s assertions that this time the applicants are definite about relocating to Australia. However, whilst the visa applicant has expressed an intention to return to Australia, the Tribunal is not satisfied there is sufficient evidence of definite plans to enable him to do so such that they establish a commitment to living in Australia in the near future. The Tribunal is not satisfied that at the time of application, or indeed since that time, the evidence establishes that the visa applicant has definite plans of relocating to Australia such that the plans establish that he has substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia.

30. The Tribunal is not, therefore, satisfied, having considered the evidence provided by the applicants both individually and cumulatively, that the visa applicant has substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia. Accordingly, the Tribunal is not satisfied that at the time of application the visa applicant had substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia. Given these findings, the Tribunal finds that the applicant does not meet cl.155.212(3). As the visa applicant was outside Australia at the time of application, he cannot meet cl.155.212(3A). No claims have been made that the visa applicant meets cl.155.212(2) or cl.155.212(4). The Tribunal finds that the visa applicant does not meet cl.155.212 of Schedule 2.

31. For the reasons above, the Tribunal finds the visa applicant does not meet the criteria for the grant of a Subclass 155 visa.

32. As stated above, the Tribunal accepts that the visa applicant has not relocated from Hong Kong to Australia as a result of difficulties in securing sufficiently remunerated employment. However, the Tribunal is not satisfied that the evidence establishes that there were compelling or compassionate reasons for his last departure from Australia. Nor is the Tribunal satisfied that he is a member of the family unit of a person who has been granted a Subclass 157 visa. Accordingly, the Tribunal is also not satisfied that the visa applicant meets the criteria for the grant of a Subclass 157 visa.

    DECISION

33. The Tribunal affirms the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.

    Denise Connolly
    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.