1513419 (Migration)

[2016] AATA 3938

1513419 (Migration) [2016] AATA 3938 (3 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kwong Wan Lo

CASE NUMBER:  1513419

DIBP REFERENCE(S):  CLF2015/36164

MEMBER:Dione Dimitriadis

DATE:3 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 03 June 2016 at 3:19pm

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 10 September 2015 to refuse to grant 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 (the Department) for the visa on 29 April 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.155.211.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.155.211 because the delegate was not satisfied that the applicant held or previously held a permanent visa in Australia and the delegate was not satisfied that the applicant had been an Australian citizen.  

4. The applicant appeared before the Tribunal on 3 June 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant applied for a Resident Return visa and stated that he was born in August 1942 in Hong Kong SAR. The applicant stated that he was granted a permanent visa in Australia on 1 September 1994.

8. In a letter dated 16 April 2015, the representative submitted that the applicant is the holder of an Absorbed Person visa. The representative stated that the applicant has not left Australia since arriving in 1981 and he is a permanent resident of Australia and has been present in Australia for at least two years of the last five years. The representative submitted that the applicant meets the requirements for a Subclass 155 visa. The representative stated that the applicant was living, working and caring for his Australian citizen mother and brother and he held a NSW driver’s licence and had an Australian bank account by 2 April 1984. His Commonwealth savings bank passbook shows that he was in Australia by 11 May 1981. The representative stated that the applicant has been honest and forthcoming with information in his dealings with the Department and it was the applicant who approached the Department. He was under the impression that he was eligible for the Australian citizenship.

9. Information in the Department’s records is that, according to the applicant’s written statement on 21 May 1985, he arrived in Australia from Hong Kong on 12 April 1981 after stowing away on a ship, ‘Long Chu Island’. 

10. Departmental records indicate that the applicant was not granted an entry permit on arrival in Australia or any entry permits since his arrival in Australia. Departmental records show that the applicant has not been an Australian citizen, is not an Australian permanent resident and has never been an Australian permanent resident.

11. Information in the Department’s records is that the applicant did not hold an entry permit on his arrival in Australia and he has not held a substantive visa since that arrival.

12. In the decision record, the delegate referred to the Absorbed Person visa notification of 11 August 2015 from the Department which states that it is the Department’s view that the applicant was not taken to have been granted an Absorbed Person visa on 1 September 1994. The delegate stated that the applicant has not been an Australian citizen, he is not an Australian permanent resident and he has not been an Australian permanent resident. The delegate stated that the Department’s records show that the applicant currently holds a Bridging visa E. The delegate found that the applicant does not meet the criteria in cl.155.211 and cl.157.211.

13. At the time of lodging the application for review, the applicant provided a copy of the delegate’s decision record.

14. On 19 April 2016 the Tribunal wrote to the applicant and invited him to a hearing on 3 June 2016.

15. On 27 May 2016 the Tribunal received a letter from the representative who submitted that the application should be referred to the Minister for intervention despite the applicant’s not being eligible for an Absorbed Person visa and a Resident Return visa. The representative stated that the applicant recognises that he is not eligible for an Absorbed Person visa due to his entry in Australia in 1981 by boat without a visa. He was born in China in 1942 and lived in Hong Kong for several years. His brother and mother migrated to Australia and became Australian citizens in 1968 and 1982 respectively. The applicant worked and supported his mother who had been unwell before his arrival. The applicant has a wife and children in Hong Kong but has not seen or spoken to them since departing for Australia. He is unable to provide information as to their current location, whether he is still married to his wife or whether any of his family has passed away.

16. The representative stated that the applicant approached the Department in 2015, believing that he was in Australia lawfully. He has a Medicare card, a tax file number and superannuation and he has always complied with his taxation requirements in Australia. The representative provided a selection of the applicant’s tax returns. The applicant has held New South Wales drivers licences and bank accounts and has not departed Australia since 1981 when he arrived. The applicant believed that he had been in Australia for a sufficient period to be granted permanent residency. His last recorded interaction with the Department was through solicitors in the mid to late 1980s. The representative stated that much of this correspondence appears to have been lost, not received or not recorded in his file. The representative stated that, given the applicant’s continued compliance with laws in Australia and the long delays in communication between his solicitors and the Department in the mid to late 1980s, the case should be looked upon favourably.

17. The representative stated that the applicant cared for his mother, an Australian citizen, until her death in 2014. He provided emotional and financial care to her. His brother died in 1991. Since 1981 the applicant has been working, living and caring for family in Australia. The earliest document the representative has indicates that the applicant was in Australia by 11 May 1981 and working by September 1981. Attempts were made to appeal the decision not to grant him a Remaining Relative visa but no final decision was made until contact ceased towards the solicitors for over two years. The representative stated that the applicant is integrated into the Australian community. He does not have a travel document and has not been able to receive one. He was refused a Hong Kong passport on the basis that he was taken to have abandoned his Hong Kong residency. As a result of his application, his old Hong Kong identity card was declared invalid. E applicant is now making attempts to apply for a Chinese passport. His birth registration is yet to be identified by Chinese Consulate officials. He continues to attend the Consulate but has been unable to secure a travel document. The applicant has not been able to secure a notarised birth certificate because of the policy of the government to require a visit to the Chinese notarial office.

18. The representative submitted that due to his long integration in the Australian community and the difficulties he would face if he returned to China this case should be referred to the Minister for intervention.

19. At the hearing the Tribunal informed the applicant of the requirements of cl.155.211 and cl.157.211. The Tribunal raised the issues with the applicant at the hearing. The applicant stated that he came here as a stowaway on a ship in 1981. He has lived here for 35 years and he has never broken Australian law. He never had a visa to enter Australia. The applicant is 75 years old and wishes to spend his last years here. His mother and his brother, who lived in Australia, have both passed away. The applicant looked after his mother for ten years. He has no other immediate family in Australia. He did not keep in contact with his wife and he stated that they were divorced more than 20 years ago. He has not had contact with his two children since 1986 or 1987.

20. The issue in this case is whether the applicant meets cl.155.211.

    Does the applicant meet the residency/citizenship requirement?

21. Clause 155.211 requires that at the time of application the applicant either:

    ·is an Australian permanent resident; or

    ·was an Australian citizen but has subsequently lost or renounced Australian citizenship; or

    ·is a former Australian permanent resident, other than a former Australian permanent resident whose most recent permanent visa was cancelled.

22. The information in the Department’s records is that the applicant is not an Australian permanent resident and he has never been an Australian permanent resident. The information in the Department’s records is that the applicant has never been an Australian citizen.

23. The Tribunal is satisfied that the applicant is not an Australian permanent resident and has never been an Australian permanent resident. The Tribunal finds that the applicant does not meet cl.155.211(a) and (c). The Tribunal is also satisfied that the applicant has never been an Australian citizen. The Tribunal finds that the applicant does not meet cl.155.211(b). Accordingly the applicant does not meet cl.155.211.

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

25. The Tribunal has also considered whether the applicant meets the criteria for a Subclass 157 visa, which include cl.157.211. This clause has the same residency and citizenship requirements as cl.155.211. The Tribunal has already found that the applicant is not an Australian permanent resident and has never been an Australian permanent resident. The Tribunal finds that the applicant does not meet cl.157.211(a) and (c). The Tribunal has already found that the applicant has never been an Australian citizen. The Tribunal finds that the applicant does not meet cl.157.211(b). Accordingly the applicant does not meet cl.157.211.

26. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

27. The applicant has been in Australia since 1981 and has not departed Australia since arriving in 1981 as a stowaway. He has never held a substantive visa. The applicant has lived and worked here for approximately 35 years. He is 73 years old. He has paid income tax, he has held drivers licences and he has a Medicare card. His mother and brother lived here as Australian citizens but both have passed away. The applicant has no immediate family here. He had a wife and two children in Hong Kong but his evidence is that he has had no contact with his children since 1986 or 1987. The applicant currently has no Chinese passport and his old Hong Kong Identity card has been declared invalid.

28. The Tribunal acknowledges that the applicant has spent more than half his life here and that he wishes to spend his final years in Australia.  The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

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

    Dione Dimitriadis
    Senior Member

    
    

    ATTACHMENT - Extracts from Migration Regulations 1994

    155.211

    The applicant:
    (a)      is an Australian permanent resident; or
    (b)      was an Australian citizen but has subsequently lost or renounced Australian citizenship; or
    (c)      is a former Australian permanent resident, other than a former Australian permanent resident whose most recent permanent visa was cancelled.

    157.211

    The applicant:

    (a)      is an Australian permanent resident; or

    (b)      was an Australian citizen but has subsequently lost or renounced Australian citizenship; or

    (c)      is a former Australian permanent resident, other than a former Australian permanent resident whose most recent permanent visa was cancelled.