1903380 (Migration)

1903380 (Migration) [2020] AATA 5472 (7 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1903380
MEMBER:David Barker
DATE:7 September 2020
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 07 September 2020 at 9:18am
CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – substantial cultural ties – involvement with the Sinhalese community in Australia – significant time elapsed since – no ongoing connection – substantial personal ties – connection to Australian-citizen mother – husband and children all Sri Lankan nationals – absence from Australia for more than 5 years – compelling reasons for the absence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 107, 109
Migration Regulations 1994 (Cth), r 2.41; Schedule 2, cl 155.212
CASES
Maneesuwan (Migration) [2018] AATA
Ward (Migration) [2019] AATA 5571
Wong (07183715) [2008] MRTA
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 December 2018 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).
The applicant applied for the visa on 4 December 2017. 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.
The delegate refused to grant the visa on the basis that the applicant did not meet cl.155.212. The delegate concluded that the applicant had spent no (0) days in Australia in the 5 year period before the date of application. The delegate was not satisfied that the applicant had substantial business, cultural, personal or employment ties with Australia which are of benefit to Australia. The delegate also found that the applicant did not meet the requirements for the grant of a Subclass 157 visa because she was not present in Australia on any day in the 5 year period preceding the date of application and was not a member of the family unit of a person holding or eligible for and in the process of applying for a Subclass 157 visa.
The review applicant (the applicant’s mother) was invited to appear before the Tribunal to give evidence and present arguments by video conference upon 4 August 2020. The Tribunal determined it was reasonable to hold a hearing through a video conference in the context of the current coronavirus pandemic, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal was mindful of the need to minimise health risks to the parties and Tribunal staff that could arise at the present time in an in-person hearing. The Tribunal also had regard to the Tribunal ’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by electronic means. The Tribunal also received oral evidence from the applicant by telephone. The Tribunal was assisted by an interpreter in the Sinhalese and English languages.
The review applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is a national of Sri Lanka and is [age] years of age.
The applicant’s mother was born in Sri Lanka and became an Australian citizen by grant in 2013, she is [age] years of age.
The applicant first came to Australia [in] March 2008 on a Subclass 202 Global Special Humanitarian visa. This visa ceased [in] March 2013. She was granted this visa on the basis of being a dependent member of her stepfather’s family unit.
The applicant’s movement records provide the following information, which is consistent with information in the delegate’s decision. A copy was provided with the review application.
Departure from Australia                   Return arrival in Australia
[May 2008]  [October 2008]
[October 2008]  [June 2009]
[January 2010]  Remaining Offshore
The applicant was granted a Subclass 155 (Five Year Resident Return) offshore on 13 December 2016, which was valid until 13 December 2017. She did not return onshore during the period that visa was valid. She applied for a further Subclass 155 visa on 7 December 2017, which was refused on 7 December 2018. It is this application that is the focus of the current review.
By way of understanding the applicant’s circumstances, it is noted that she sponsored her husband and two children in relation to an application for [a] Partner visa, with that application being lodged with the Department on 22 March 2017 and subsequently refused on 7 December 2018. In the submissions to the Department of Home Affairs (the Department) in association with the Subclass155 visa application lodged in December 2017 the applicant’s migration agent referred to the imminent expiry of the applicant’s Subclass 155 visa on 13 December 2017, as this was relevant to the application for the Partner visa lodged offshore by her spouse.
Evidence provided to the Department with the Subclass 155 visa application included:
·The migration agent’s written submissions;
·A letter to the applicant, dated [in] May 2008, from [Sinhalese Cultural Organisation 1];
·Publicity material, partially translated, regarding [Sinhalese Cultural Organisation 1], [Sinhalese cultural event, 2008];
·Ministry of Education & Higher Education, Sri Lanka, [specified] Competition, Certificate awarded to applicant, dated [in] 1996;
·Evidence of the Australian Citizenship of the applicant’s mother;
·Copy of article ‘[Article Title 1]’, [Publication 1], [in] September 2017;
·[University 1], Sri Lanka, [Qualification 1], 13 November 2011;
·[Australian Educational Institute 1] Certificate of Attendance, [in] 2009;
·[University 2, Australia], [specified course] 2009 (36);
·[specified award] 2011, Certificate.
Prior to the hearing the Tribunal received evidence, including, but not limited to:
·Copies of documents previously supplied to the Department in association with the visa application;
·The migration agent’s written submissions, dated 28 July 2020;
·Eight photographs;
·A copy of the applicant’s mother’s passport, including 10 pages displaying travel history.
The written submissions from the applicant’s migration agent contending the applicant satisfies the criterion in cl.155.212(3) because of the strength of her cultural ties to Australia due to her close connection to and involvement with the Sinhalese community in Australia. The submission also contends that the applicant, particularly through her connection to her mother and stepfather, has substantial personal ties to Australia. The submissions contend that compelling reasons for the applicant’s absence from Australia was for academic studies, which were not fully completed due to her marriage and parenting responsibilities. It is contended her spouse had an established career in Sri Lanka and that due to this the applicant had no choice but to remain in Sri Lanka to continue her close and loving relationship with her spouse and raise the two children from the relationship.
THE HEARING
Evidence of the applicant’s mother (the review applicant)
The applicant’s mother confirmed certain details from the delegate’s decision record, including that the applicant first arrived in Australia [in] April 2008 and most recently departed Australia [in] January 2010.
In relation to compelling reasons for the applicant’s absence from Australia during the 5 year period prior to her application for the subclass 155 visa in December 2017, the applicant’s mother said that her daughter had difficulty returning to Australia after her visa ceased in 2013, mainly because of problems getting a further visa permitting her to return to Australia. She said that her daughter returned to Sri Lanka in 2010 because she wanted to complete her diploma course there and also because of the strong relationship she developed with the man she subsequently married. The applicant’s mother said she did not initially approve of her daughter’s relationship and that she thinks her daughter’s plan was to remain in Sri Lanka to complete her academic studies and then marry, before coming back to Australia with her marital relationship formally established.
The applicant’s mother said her daughter married in 2012 and since that time has had two children. She is currently pregnant with her third child. The applicant’s mother said that her daughter works as a [Occupation 1] for [Company 1] in Sri Lanka, where she is also the [senior position] of the [company]. She said that her son-in-law is an [Occupation 2].
As to substantial cultural ties the applicant has to Australia, the applicant’s mother said her daughter is very good at dancing and singing in traditional Sinhalese customary forms. She said that her daughter was involved in Sinhalese cultural events while she was in Australia during 2008 and that at that time, she [worked on a project that documented] the Sinhalese expatriate culture in Australia. She said that her daughter, through her [employment] connections, has maintained her connection with people in Australia who are involved in Sinhalese cultural activities. She said that her daughter has a well-established career as a [Occupation 1] and could contribute to Australia through joining a [Industry 1] organisation here such as [Company 2].
The applicant said her daughter also has a strong interest in environmental issues and was the [office bearer] of a young zoologist association in Sri Lanka. She said that her daughter loves nature and would contribute to the environment if she returned to Australia.
In relation to substantial personal ties the applicant has to Australia, the applicant’s mother emphasised the importance of the connection between herself, her husband and her daughter. She said although she and her daughter live in two different countries, she is always conscious of her daughter and her daughter’s family circumstances. She said that they talk over the phone almost every day, discussing events in her daughter’s jobs and also general family matters. She said that she thinks about her daughter every day and frequently calls her around the time that her daughter finishes work, to make sure she gets home safely.
The applicant’s mother said that she visits Sri Lanka frequently, for periods up to a month at a time. She said that she travels to Sri Lanka to visit both her daughter and her husband, who has spent the majority of his time in Sri Lanka in recent years looking after his elderly parents. She said that she convinced her husband to return to Australia earlier this year, at the end of her most recent trip to Sri Lanka, as she was concerned about his safety during the coronavirus pandemic. The applicant’s mother said that when she is in Sri Lanka she always stays in her daughter’s home.
The applicant’s mother gave evidence at hearing that her husband has multiple medical conditions and is no longer employed. She said that she works [in] community care, providing home care services for disabled people in the community. She said that Australia has provided her with multiple educational opportunities and that she has a good life here. She said that it would give her peace of mind if her daughter and grandchildren also had the opportunity to come to Australia and share these sorts of opportunities with her. She said that she secured finance allowing her to buy a residential block and build a house in [City 1], with the intention that this is where she could live with her daughter and her daughter’s family if they are allowed to come to Australia. She said that this appears to be the only viable way that the family can be reunited here in Australia as she does not want to go and live in Sri Lanka on a permanent basis.
Evidence of the applicant
The applicant gave evidence at hearing that she held a valid visa allowing her to be lawfully in Australia between 2008 and 2013. She said that during that period she visited Australia and was involved in Sinhalese cultural activities here and that she also undertook short-term educational courses in Australia.
In relation to compelling reasons for her absence from Australia between December 2012 and December 2017, the applicant said the main reason is that she didn’t have a valid visa allowing her to enter Australia for most of that period. She said that an earlier visa, which her mother had applied for on her behalf, expired in 2013 and it was not until December 2016 that she was successful in getting a visa that would have permitted her to return to Australia. She said that she and her husband married in 2012 and that their first child was born in [year]. The applicant gave evidence at hearing that the visa she was granted in December 2016 was only valid for 12 months and that when it was granted her two children were very young, with one being only [age] old and the other around [age] old. She said the visa she was granted in December 2016 only gave her permission to enter Australia and that it was not practical or appropriate for her to be separated from her children during the period that visa was valid because of their young age.
Because she found it impossible to leave her children and travel to Australia after she was granted a 12 month visa in December 2016, the applicant decided the only viable option, which would allow her and her immediate family to travel to Australia together, was to apply for what she referred to as a family visa.
In relation to her cultural ties to Australia, the Tribunal explained that it had before it the evidence that has been submitted about her involvement in a Sinhalese cultural event in Australia in 2008 and invited her to comment on the delegate’s finding that as this reflected activities which occurred over 11 years ago, they did not reflect ongoing cultural ties of any great significance which the applicant had to Australia. In response, the applicant conceded that the delegate had made a valid point. She however, contended that through her involvement in [Industry 1] in Sri Lanka, as [a Occupation 1], she has maintained regular contact with Sri Lankan expatriates residing in Australia. She said that through these contacts she has maintained an awareness of Sri Lankan cultural activities in Australia and has publicised many of these activities [in] Sri Lanka.
As to personal ties that she has to Australia, the applicant emphasised the importance of her relationship with her mother, who is an Australian citizen and resident in Australia. She said that she is an only child and that her parents’ marital relationship broke down when she was 6 years of age. She said that from that time her mother was solely responsible for meeting all of her care and support needs. She said that they have a very close and loving relationship and notwithstanding the physical distance they have had from each other since she returned to Sri Lanka in 2010, they maintain very regular contact by telephone and other forms of social media. She said that her mother has visited her frequently in Sri Lanka and is both an involved parent and grandparent
The Tribunal invited the applicant to respond to a comment made by the delegate in their decision record, where they acknowledged the mother and daughter relationship but made the point that neither the applicant nor her mother were financially dependent on each other. In response the applicant conceded there is no financial dependency between her and her mother but said that the issue is not a financial issue, but rather the close and loving relationship that exists between her and her mother. She said that her mother has no close relatives in Australia and that as she has no siblings, there is no one else to look after her mother as she gets older, apart from the applicant. She observed that her biological father passed away in 2019 and that she now has no close relatives in Sri Lanka apart from her husband and their children. The applicant said that her mother is close to [age] years of age and that this is an issue of concern to her. The applicant said she would also like to give her mother the opportunity to have a closer direct relationship, as a grandmother, with her children.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 visa 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.
In this case, the visa applicant is seeking to meet cl.155.212(3). The visa applicant 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, the visa applicant cannot meet cl.155.212(3A).
Was the applicant lawfully present in Australia?
Clause 155.212(2) is met if the applicant was lawfully present in Australia for a total of not less than 2 years in the period of 5 years immediately before the visa application and, during that time:
·was an Australian citizen or the holder of a permanent visa or permanent entry permit; and
·was not the holder of certain specified visas.
The applicant has spent no time in Australia over the period of 5 years immediately before the visa application.
Accordingly, the applicant does not meet cl.155.212(2).
Does the applicant meet the substantial ties criterion?
Clause 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.
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.
The Tribunal has had regard to the Department Policy and Procedural Instructions in the Procedures Advice Manual (PAM3) with its decision making, whilst noting while it provides guidance, the Department’s policies and procedures are in no sense binding on the Tribunal and cannot deprive it of exercising its own judgment, especially in relation to discretionary powers.[1] The PAM3 states that decision makers, such as the Tribunal , should consider the whole of the applicant’s relevant ties with Australia and determine whether cumulatively an applicant’s substantial ties are of benefit to Australia. The Tribunal should have regard to all the circumstances of the case in determining whether the person has substantial ties of the relevant kind to Australia.
[1] Re Drake and MIEA (No 2) (1979) 2 ALD 634 at 644.
The applicant does not claim to have substantial business ties with Australia that are of benefit to Australia.
Does the applicant have substantial cultural ties with Australia that are of benefit to Australia?

The PAM3 suggests that substantial cultural ties may exist if the applicant’s cultural pursuits are conducted at a professional level or with a degree of public recognition and provides examples of cultural ties which may constitute substantial ties. These include:
·a person who is accepted as a member of a cultural community within Australia who is actively involved in traditional activities
·a person involved in the Arts at a professional level
·members of religious communities in Australia; or
·sports persons or professional support staff who are members of Australian sporting associations.
In relation to the claim that the applicant has substantial cultural ties with Australia to Australia, her mother submits that her daughter is very good at dancing and singing in traditional Sinhalese customary forms and that her involvement with a Sinhalese cultural festival in NSW in 2008 establishes the existence of her daughter’s substantial cultural ties to Australia. The written submissions received from the representing migration agent (the representative) submit that the active involvement of the applicant in traditional Sinhalese cultural activities can be demonstrated by her past involvement in [Sinhalese Cultural Organisation 1] and the annual [cultural] show in 2008. The representative submits that the applicant’s 2008 involvement is of significant benefit to Australia due to the applicant’s potential role in enriching Australia’s proud and vibrant multicultural society. The representative concedes that it is undeniable that significant time has elapsed since the applicant’s last contribution to the Australian Sinhalese community, but that her talent and cultural knowledge would still be extremely valuable to Australia’s vibrant multicultural community if she were permitted to return here.
At hearing, the applicant conceded that the delegate made a valid point in noting her involvement in a Sinhalese cultural event in Australia in 2008 did not reflect significant ongoing ties to Australia. She did however contend that she has through her role in [Industry 1], maintained contact with the expatriate Sinhalese community in Australia and publicised cultural activity undertaken by the Sinhalese community in Australia [in] Sri Lanka. There is no documentary evidence before the Tribunal which would support this claim. Without such corroborating evidence, the Tribunal is not persuaded the claimed contact with the expatriate Sinhalese community in Australia constituted a substantial cultural tie between the applicant and Australia at the time of her visa application in December 2017.
The Tribunal has reviewed the documents provided in support of the visa and review applications and accepts that the applicant has a profile and recognition in Sri Lanka through her career in [Industry 1] as a [Occupation 1] with [Company 1]. The Tribunal accepts the applicant was awarded a certificate associated with her involvement with a [competition] in 1996 and that whilst in Australia in 2008 and 2009 she undertook some brief courses through [Australian Educational Institute 1] and [University 2]. The Tribunal accepts the applicant participated in the [cultural] show in May 2008, an event to preserve and promote Sinhalese culture in Australia.
The Tribunal is not however persuaded that the applicant’s involvement in the [cultural] event 2008, or her participation in some brief courses whilst in Australia in 2008 and 2009 demonstrates that the applicant had ongoing substantial cultural ties with Australia around the time of her visa application in December 2017. This is a relevant consideration, as the legislation requires that at the time of application the applicant ‘has’ substantial ties with Australia and whilst the benefit to Australia could be achieved in the future, the relevant cultural ties must exist at the time of application.
It is claimed that the applicant [worked on a project] when she was involved with [cultural] and other activities associated with [Sinhalese Cultural Organisation 1] and that this is further evidence of her substantial cultural ties with Australia. There is no evidence to support this claim, such as information [on the finished products of the project] and how it may have contributed to ongoing cultural ties between the applicant and Australia that were in existence at the time of her visa application.
After reviewing the claims put forward regarding cultural ties the applicant has to Australia, both singularly and cumulatively, the Tribunal finds the applicant does not have substantial cultural ties with Australia. This is because it is not apparent to the Tribunal how involvement in cultural events, some nine years previously in 2008, appreciated as it undoubtedly was, along with undertaking two brief courses can be appropriately contextualised as a substantial cultural tie with Australia in existence around the time of the visa application in December 2017. The applicant conceded this point at hearing but pointed to the benefit to Australia of her ongoing networking with the expatriate Sinhalese community in Australia and her publicising of Sinhalese cultural activities in [Sri Lanka]. The Tribunal acknowledges this claim, but without probative evidence to support her ongoing connection to the local Sinhalese community in Australia, or of her promoting traditional Sinhalese cultural activities within the Australian multicultural context in [Sri Lanka], the Tribunal is not persuaded to place significant weight upon this claim. Due to the lack of evidence regarding ]the project] it is claimed the applicant [worked on] during her time in Australia in 208 and 2009, the Tribunal is also not persuaded to place significant weight upon this factor.
The applicant’s mother contends the applicant has a commitment to nature and that if would be of benefit to the environment in Australia if she were granted the visa. The Tribunal acknowledges the applicant may have a commitment to nature and environmental causes but is not persuaded this in and of itself establishes a substantial cultural tie with Australia.
The Tribunal has considered the applicant’s claims as to cultural ties with Australia, both separately and cumulatively, but is not satisfied they establish a substantial cultural tie with Australia which was in effect at the time of the visa application in December 2017.
Does the applicant have substantial personal ties with Australia that are of benefit to Australia?
In relation to the claim that the applicant has substantial personal ties with Australia that are of benefit to Australia, Departmental PAM3 guidelines provide examples of circumstances that the Department considers may indicate personal ties with Australia, including where the applicant has a history of long term residence in Australia prior to the last 5 years, particularly, if the applicant has spent their formative years in Australia, or has spent a significant amount of time in Australia since first being granted a permanent visa. The applicant’s circumstances do not reflect this example, as she has no history of long term residence in Australia and has cumulatively only spent 258 days in Australia.
The PAM3 guidelines provide as a further example of what may constitute a substantial personal tie to Australia a person who has been living outside Australia with an Australian citizen partner or, in the case of a minor child, Australian citizen parent, who has previously lived in Australia. This does not reflect the applicant’s circumstances, as she is not a minor child and her partner is not an Australian citizen.
Further examples of a person’s substantial personal ties to Australia described in PAM3 which are not applicable to the applicant’s circumstances are: where a person has been living in Australia for more than 12 months in the last 5 years, including as a temporary resident; where a person has one or more Australian citizen minor children living in Australia (including at boarding school) where no legal impediment to access exists; or where a person has been living overseas with their family unit, including Australian partners and minor children, and the applicant provides evidence of imminent plans to return to Australia with their family to live.
The Tribunal accepts the applicant wishes to return to Australia with her family unit, which consists of her husband and children. The Tribunal notes that neither her husband or minor children are Australian nationals and as such her imminent wish to return to Australia with them does not establish a substantial personal tie that she has with Australia.
PAM3 discusses how personal assets in Australia, such as a family home or single investment property may constitute a personal tie with Australia, however there is no evidence before the Tribunal to suggest the applicant has personal assets of any significance in Australia. The Tribunal acknowledges the evidence of the applicant’s mother as to her residential property in [City 1]. However this is an asset owned by the applicant’s mother, not the applicant.
The PAM3 also provides the example of close family members as providing the basis for a substantial tie with Australia. This is the basis upon which the applicant claims to have a substantial tie to Australia, through her connection to her mother who is an Australian citizen and resident in Australia. The Tribunal has considered what constitutes a substantial personal tie with Australia that is of benefit to Australia within the context of a tie between a person and a close family member.
The applicant’s immediate family consists of her husband and their children, who are Sri Lankan nationals. She married in 2012 and is currently pregnant with the third child from her union with her husband. To this extent the Tribunal has formed a view that the applicant’s most substantial familial ties are with her husband and children and notes that her family life with them has in its entirety been based in Sri Lanka.
The delegate noted the relationship between the applicant and her mother is not of a type for which family reunion might be available under the Family Stream of the Migration Program and that her mother could not be regarded as a member of the applicant’s family unit as she is not dependent on the applicant, nor is the applicant dependent on her mother. The evidence of the applicant’s mother at hearing corroborated the latter point, in that she attested to her employment [in] community care, providing home care services for disabled people in the Australian community and that she has sufficient financial resources to both build a home on her land in [City 1] and also travel regularly to Sri Lanka to visit either her daughter or her husband, who until recently has spent more time there than in Australia.
The Tribunal notes that the delegate’s assessment is correct as far as it goes but considers that it is an example where the Tribunal is required to assess whether the bond between mother and daughter is nonetheless a substantial tie and if so, if it is of benefit to Australia, rather than being bound by how Departmental procedures evaluate a personal tie. The Tribunal notes that it is also appropriate to consider the nature of the tie between the applicant and her stepfather.
The Tribunal considered whether the applicant has personal ties with Australia. The applicant contends that in the particular context of her background, where her mother largely raised her as a single parent, she and her mother are very close and this claim is supported by her mother, who gave evidence at hearing that she and the applicant communicate on a near daily basis. The Tribunal acknowledges this claim and is satisfied there is a close emotional connection between the applicant and her mother. The Tribunal is not persuaded the applicant has a close and enduring connection to her stepfather, as this is not demonstrated by the evidence. Indeed the evidence, emphasising as it does the connection between the applicant and her mother developing in a largely single parent familial configuration belies any contention her mother’s current spouse was an influence during the applicant ’s formative years. Whilst the written submission received by the Tribunal point out that the applicant came to Australia with her mother and stepfather, she returned to Sri Lanka relatively shorty thereafter and has not returned to Australia in over a decade. There is also the claim that the applicant’s stepfather has travelled to Sri Lanka frequently and has in fact spent more time there in recent years than he has in Australia. However the available evidence suggests this was so that he could spend time with and look after his mother, rather than because of his tie with the applicant. Whilst acknowledging the applicant ’s wish to now reside in Australia with her immediate family, the Tribunal is not persuaded the evidence establishes she was in or around the time of application regarding Australia as home. Notwithstanding these findings about the applicant ’s intention to reside in Australia and as to the connection between the applicant and her stepfather, the Tribunal is satisfied the connection between the applicant and her mother constitutes a substantial personal tie which the Applicant has with Australia.
The Tribunal then considered whether the personal ties the applicant has with her mother are of benefit to Australia. PAM3 guidelines suggest that substantial personal ties may be of benefit to Australia in the sense that an applicant is, or has been, a participating member of the Australian community and economy, and that their ties enrich the lives of individual Australian residents and citizens.
The applicant and her mother contend that it would enrich her mother’s life for her to have increased access to the applicant and her children. The Tribunal acknowledges this claim. However the Tribunal is of the view that the applicant’s lack of participation in the Australian community or economy over the past decade is a factor to be considered and the frequency of her mother’s trips to Sri Lanka to spend time with the applicant and her stepfather mitigates the weight I have given to this factor. This is because the applicant and her mother have maintained their close connection over the past decade without the applicant’s presence in, or participation in the Australian community. This has been achieved through the regular communication they have with each other by telephone or other electronic means and the frequency of her mother’s trips to Sri Lanka to visit both her and her stepfather, who is reported to have spent more time in Sri Lanka than Australia over recent years.
The applicant contends her wish to support her mother due to her age and relative isolation in Australia and that her capacity to look after her mother as she gets older is of potential benefit to Australia. The legislation anticipates benefit that may occur at a future point in time and the Tribunal has given some weight to this factor. However, the extent of this weight is mitigated by the lack of evidence as to her mother suffering poor health or other vulnerabilities. The applicant’s mother is at present [age] years of age and is in steady employment as a [Occupation 3]. The Tribunal is not persuaded that as a person of that age she could be regarded as inherently frail or requiring care and support.
The Tribunal is aware that, enabling a family unit to remain together can be considered of benefit to Australia if there is evidence of an imminent intention for the family unit to domicile themselves in Australia. The Tribunal acknowledges the applicant ’s intention to domicile her family unit in Australia. However the Tribunal finds that the applicant ’s family unit consists of her immediate family, being her husband and children and not her extended family, which would encompass a family structure including her mother, stepfather and in-laws. To this extent the Tribunal finds the applicant’s family unit is at the present time ‘together’ in Sri Lanka and that benefit to Australia through enabling a family unit to ‘remain’ together through facilitation of their migrating to Australia is not established. This is because it is not necessary, they come to Australia for the family unit to ‘remain’ together and it is not evident to the Tribunal that a family unit ‘remaining together’ in an offshore location is inherently of benefit to Australia.
A person’s connection to a close family member may provide a substantial tie with Australia that is of benefit to Australia. In the particular circumstances of this case, where it is not a matter of enabling a family unit to remain together, or a connection based on the applicant having a significant history of active participation in the Australian community or economy, the Tribunal is not persuaded the applicant’s tie to her mother is a substantial personal tie with Australia that is of benefit to Australia.
Does the applicant have substantial employment ties with Australia that are of benefit to Australia?
The applicant’s mother contends the applicant’s skills and experience in [Industry 1] would be of benefit to Australia through her capacity to work in an organisation such as [Company 2]. The Tribunal has noted there was no current offer of employment to the applicant from [Company 2] or other [Industry 1] business either at the time of application or the present time. As such, the Tribunal is not satisfied her hypothetical capacity to seek employment at a future date constitutes a substantial tie such as is envisaged in the legislation.
Assessment of whether the applicant has substantial ties with Australia that are of benefit to Australia
In their written submissions, the applicant’s representative drew the attention of the current Tribunal to previous Tribunal decisions (differently constituted) which address the issue of whether an applicant for a Subclass 155 visa has substantial ties with Australia that are of benefit to Australia[2] to support, in the matter of Ward, the contention the applicant has substantial cultural ties to Australia and in the matter of Maneesuwan that her second pregnancy constrained her ability to return to Australia after she was granted an initial Subclass 155 visa in December 2016. In an earlier submission provided to the Department, the representative cited an MRT decision, Wong[3], which like Ward outlined Departmental policy guidance but then focuses on how a close family connection can constitute personal ties which may, in conjunction with either contemporaneous or future active participation in the Australian community. The representative also referred to the matters of Maneesuwan and Wong in relation to discussion of compelling reasons for the applicant’s absence from Australia. This is a separate factor to that under consideration of whether substantial ties with Australia that are of benefit to Australia exist. The Tribunal has reviewed these decisions in the process of undertaking its own consideration of the legislative criteria relevant to qualification for the Subclass 155 visa.
[2] Ward (Migration) [2019] AATA 5571; Maneesuwan (Migration) [2018] AATA
[3] Wong (07183715) [2008] MRTA
The applicant and her mother presented as sincere and credible witnesses. There was consistent evidence that they have a close personal relationship and that her mother is also close to the applicant’s children. As discussed elsewhere in this decision, the Tribunal is satisfied this connection constitutes a substantial personal tie with Australia. The applicant has been able to maintain her relationship with her mother despite living in different countries over the past decade. In the circumstances of this case, the Tribunal is not persuaded the physical, emotional or mental health of the applicant’s mother would be adversely affected if the applicant continues to live in Sri Lanka. It is open, as indeed is demonstrated by the evidence before the Tribunal that her mother can visit the applicant and her family in Sri Lanka when the global health crisis improves and that they can maintain a meaningful connection through regular telephone contact. For these and other reasons identified in this decision, the Tribunal is not sufficiently satisfied the substantial personal ties the applicant has with Australia are of benefit to Australia. The Tribunal is also not persuaded the applicant’s past involvement with a Sinhalese cultural festival in Australia in 2008, brief courses she undertook in [specified] studies during 2008 and 2009, a claimed [project she worked on], or claimed ongoing liaison with the Sinhalese community, or claimed ongoing publicising of Sinhalese cultural activities in Australia constitute a substantial cultural tie with Australia that were of benefit to Australia at the time of application in 2017.

The Tribunal has considered the evidence regarding the applicant’s ties with Australia, both independently and cumulatively, but is not satisfied that such ties are substantial ties that are of benefit to Australia. The Tribunal is not satisfied that at the time of application the applicant had substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia. The Tribunal therefore finds that the applicant does not meet cl.155.212(3). As the applicant was outside Australia at the time of application, she cannot meet cl.155.212(3A). No claims have been made that the applicant meets cl.155.212(2) or cl.155.212(4). The Tribunal finds that the applicant does not meet cl.155.212 of Schedule 2.
For the reasons above, the Tribunal finds the visa applicant does not meet the criteria for the grant of a Subclass 155 visa.
The Tribunal has also considered whether the applicant meets the criteria for the grant of a Subclass 157 visa.
Clause 157.212(1) of Schedule 2 to the Regulations requires that, a visa applicant meets the requirements of cl.157.212 (2) or (3) of Schedule 2 to the Regulations.
Clause 157.212(2) of Schedule 2 to the Regulations requires that the visa applicant was lawfully present in Australia for a period of, or periods that total, not less than one (1) day but less than two (2) years in the period of five (5) years immediately before the application for the visa and, during that time, the visa applicant: was the holder of a specific visa or an Australian citizenship and if outside of Australia had compelling and compassionate reasons for her last departure from Australia.
As detailed in the delegate’s decision record at the time the visa application was lodged, the applicant was outside of Australia and in the 5 years immediately before the visa application was made the applicant had spent no days in Australia. The applicant has less than one day’s presence in Australia during the relevant time. Therefore, the applicant cannot meet cl.157.212(2) of Schedule 2 to the Regulations.
Clause 157.212(3) of Schedule 2 to the Regulations requires that the visa applicant is a member of the family unit of a person who: has been granted a Subclass 157 visa and that visa is still in effect; or meets the requirements of subclause (2) and has lodged a separate application for a Return (Residence) (Class BB) visa.
There is no evidence before the Tribunal that the applicant is a member of the family unit of a person who has been granted a Subclass 157 visa and as determined above the visa applicant does not meet the requirements of subclause (3). Therefore, the visa applicant does not meet cl.157.212(3) of Schedule 2 to the Regulations.
Accordingly, the applicant does not meet the criteria for the grant of a Subclass 157 visa.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.
David Barker
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.

[2020] AATA 5472

7 September 2020

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