2008331 (Migration)

[2023] AATA 1757

2008331 (Migration) [2023] AATA 1757 (9 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Rose Chai (MARN: 0319306)

CASE NUMBER:  2008331

MEMBER:Margie Bourke

DATE:9 May 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 09 May 2023 at 4:31pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – substantial ties criterion – substantial personal ties – parents own a property in Perth – two cousins live in Perth – parents reside substantially in Malaysia – one brother lives in Melbourne – prescribed residency requirements – Subclass 157 (Three Month Resident Return) requirements considered – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 155.212

CASES
Lorenzo Paduano v MIMIA [2005] FCA 211

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 March 2020 to refuse to grant the visa applicant (the applicant) a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 12 November 2019. 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 (Cth) (the Regulations). Relevantly to this case, they include cl.155.212.

3. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.155.212 because the delegate was not satisfied the visa applicant met any of the alternative requirements in the subclause.

4. The review applicant had applied to the Tribunal for review of the decision by the Department in relation to this visa applicant, and also of the decision by the Department in relation to the brother of this visa applicant. Both decisions related to a refusal by the Department on the basis the visa applicants did not meet the requirements for the return resident subclass 155 or subclass 157 visas. The two visa applicants are brothers, with the same review applicant, and the issues were similar. At the invitation of the Tribunal, the review applicant consented to the two reviews being heard as a combined hearing.

5. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the review applicant, and the nature of the review. The Tribunal had regard to the fact the two visa applicants in both reviews would be giving evidence from overseas. The Tribunal was of the view that the conduct of the hearing by video would allow the review applicant the opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing, and to properly assess the evidence before it. The Tribunal noted that the review did not involve an extensive amount of paperwork to be put to the review applicant during the course of the hearing. The hearing was scheduled at a time when the availability of in-person hearings was restricted due to the ongoing pandemic. The review applicant had lodged the applications for the reviews in May 2020, and the Tribunal considered any further unnecessary delay should be avoided. For all the above reasons, the review applicant was invited to attend the combined hearing to be conducted by video.

6. The hearing was initially scheduled for 5 April 2023. This hearing was postponed by the Tribunal after the review applicant provided submissions shortly before the hearing, that the Tribunal wished to consider.

7. The review applicant appeared before the Tribunal by video on 8 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from both visa applicants who attended the hearing by video on separate devices from Malaysia.

8. The review applicant was represented in relation to the review. The representative attended the hearing by video.

9. This decision record relates to the visa applicant, [Mr A]. A separate decision record has been made for the other visa applicant in this combined hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Requirements of Subclass 155:cl.155.212

11. 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.

12. In this case, the applicant is seeking to meet cl.155.212(3). In the letter dated 11 November 2019, provided by the visa applicant attached to the application for the visa, the applicant states that his application is on the basis of personal and family ties in Australia.

13. The visa applicant does not claim to meet any of the other subclauses in cl.155.212, but the Tribunal will consider whether the visa applicant can meet these requirements. As the applicant was outside Australia at the time of application, the applicant cannot meet cl 155.212(3A).

    Was the applicant lawfully present in Australia?

14. Subclause 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.

15. The visa applicant and his representative stated in the hearing that the information in the Department’s decision record dated 12 March 2020, (a copy of which had been provided to the Tribunal by the review applicant), that the visa applicant had spent 34 days in the five years prior to the application being lodged, was correct. The Tribunal accepts this evidence, and is satisfied that the visa applicant was not lawfully present in Australia for a total of not less than two years in the period of five years immediately before the time of application. Accordingly, the Tribunal is satisfied that the visa applicant does not meet the requirements of cl.155.212(2).

    Does the applicant meet the substantial ties criterion?

16. 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.

17. 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?

18. The Tribunal is satisfied that the visa applicant came to Australia in the year 2000 to commence his studies, and departed Australia in 2009 after he graduated with a Master’s degree in [Discipline 1]. The Tribunal accepts that the visa applicant obtained part-time work in a factory, but was unable to obtain full-time employment in his field of expertise in which he had obtained his Masters degree, namely [Discipline 1]. The Tribunal accepts that the visa applicant then returned to Malaysia where he obtained employment and then moved to [Country 1] where he worked in [Industry 1] for four years. The Tribunal is satisfied the visa applicant then returned to Malaysia in 2014, and subsequently came to Australia for a period of three months to again try to obtain employment in his field of expertise. The Tribunal accepts the visa applicant was unable to find employment in Australia, and returned to Malaysia where he commenced work in the [family business]. The Tribunal accepts that the visa applicant gained experience in [Industry 2], and worked in [specified area] and recently was promoted to [Position 1] of the [business] in 2022. The Tribunal is satisfied based on the evidence of the visa applicant that he is fluent in several languages, including Malay, Cantonese, Mandarin and English and has limited Japanese.

19. The Tribunal is satisfied based on the oral evidence before it that the visa applicant has recently married, and his wife is pregnant. The Tribunal is satisfied that the visa applicant’s wife cannot obtain citizenship in Malaysia, and has a visa that she has to renew annually. The Tribunal is satisfied that the visa applicant’s wife has a [Country 2] passport, and one of her parents is from [Country 2], but she has no contact with or relatives in [Country 2]. The Tribunal is satisfied that the visa applicant is very concerned about his wife’s future.

20. The Tribunal is satisfied that the visa applicant works at a [business] of which his father is one of the managing directors. The Tribunal is satisfied that the visa applicant is actively involved in the annual Anzac Day commemorations organised by the [business] conducted at the nearby War Memorial.

21. The Tribunal is satisfied based on the evidence before it in the hearing that the visa applicant’s parents (also the parents of the review applicant) are current holders of subclass 155 resident return visas. The Tribunal is satisfied that the visa applicant’s parents own a property in Perth. The Tribunal is satisfied, based on the evidence before it in the hearing, that the visa applicant’s parents have resided substantially in Malaysia since 2010. At the time of the hearing the visa applicant’s parents were in Malaysia. The review applicant told the hearing that the visa applicant’s parents were maintaining their business interests in Malaysia with the visa applicant’s older brother, the other visa applicant in the combined hearing. The Tribunal accepts that the review applicant’s and visa applicant’s parents last came to Australia five years ago when the review applicant’s son was born in 2018.

22. The Tribunal is satisfied based on the evidence before it that the review applicant lives in Melbourne with his wife and two young children. It was submitted that the visa applicant could reside in the property in Perth owned by his parents. In answer to a question from the Tribunal is the review applicant stated that the brothers could travel between Melbourne and Perth if they needed to spend time together. The review applicant also stated that ultimately the visa applicant could reside in Melbourne.

23. The Tribunal was provided with two statements dated 15 March 2023 from [name] and from [name], cousins of the visa applicant who reside in Perth.

24. The visa applicant’s brother who gave evidence and was the other visa applicant in the combined review currently resides in Malaysia with his wife and his two Australian citizen children, who were born in Australia in 2006 and 2009.

25. The Tribunal considered all the information provided in written submissions, statements, document and oral evidence. The Tribunal accepts the information and evidence that has been provided by the review applicant and the visa applicant in this review.

26. There is no claim that the visa applicant has substantial business ties with Australia. The Tribunal is not satisfied that the visa applicant has substantial business ties with Australia that are of benefit to Australia.

27. The Tribunal is satisfied that the visa applicant has significant linguistic skills and experience in [Industry 2]. The Tribunal accepts the visa applicant’s oral statement that he has no evidence to provide to the Tribunal that these skills are required or he has arranged for employment in Australia. Based on the evidence before it, in the absence of any current employment or offer of employment, the Tribunal is not satisfied that the skills the visa applicant has, are evidence of substantial employment ties with Australia. The Tribunal is not satisfied that the visa applicant has substantial employment ties with Australia that are of benefit to Australia.

28. The Tribunal is satisfied that the visa applicant is involved in annual Anzac day commemorations in Malaysia. The Tribunal accepts that respect of the Anzac day tradition is a cultural connection with Australian traditions. The Tribunal is not satisfied that the visa applicant’s involvement in the [business] functions on an annual basis in Malaysia is evidence of substantial cultural ties with Australia. The Tribunal is not satisfied that the visa applicant has substantial cultural ties with Australia that are of benefit to Australia.

29. The Tribunal is satisfied that the visa applicant’s parents own a property in Perth, that he has two cousins who live in Perth, that his parents reside substantially in Malaysia, that his brother with his wife and two children live in Melbourne, and his other oldest brother currently resides in Malaysia with his wife and two Australian citizen children. The Tribunal has considered the evidence of these family and personal ties. The Tribunal does not find this evidence of personal ties and family ties is evidence that the applicant has substantial personal ties with Australia.

30. The Tribunal does not find the family connection of the visa applicant with his Australian citizen nephews is a substantial personal tie with Australia, as the visa applicant and his nephews reside in Malaysia, although the Tribunal recognises the nephews are Australian citizens by birth.

31. The Tribunal is satisfied that in the five years prior to the time of application for the visa which was made on 12 November 2019, the visa applicant, had travelled to Australia and spent a total of 34 days in Australia. The Tribunal considers this is relevant evidence of the substantiveness of the visa applicant’s personal ties with Australia. The Tribunal has only considered the period prior to the covid 19 pandemic period, which is roughly consistent with the time of application, made in November 2019, as the Tribunal recognises that travel during the pandemic has been restricted.

32. The Tribunal discussed with the visa applicant that when he was working in his family’s [business] as [specified position], he was an employee working in a shift position and was not indispensable. The Tribunal discussed with the visa applicant that if he had personal ties with Australia that were substantial he could have asked his family for time to go to Australia to maintain his connections with his substantial personal ties. The visa applicant told the Tribunal in the hearing that at that time, in the five years prior to the time of application, he was not married, and was looking for other opportunities. The visa applicant stated that now he was married he wants to settle down and he is not getting any younger. The Tribunal accepts the evidence of the visa applicant that in the five years prior to the time of application, the personal ties the visa applicant had with Australia were not substantial.  The Tribunal accepts the visa applicant did not place priority on his connections with his cousins or his older brother who resided in Australia at that time. The Tribunal assesses that the personal ties the visa applicant describes that he has with Australia are not substantial personal ties.

33. The Tribunal is satisfied that the visa applicant came to Australia to study, and completed an under graduate degree and a Masters degree at an Australian university. The Tribunal is satisfied that the visa applicant departed Australia when he could not obtain employment. The Tribunal has taken into account that the visa applicant was studying in Perth from the year 2000 and completed his studies in 2008, and the graduation was the following year. The Tribunal is not satisfied that completing tertiary studies amounts to substantial personal ties with Australia.

34. In his statement dated 11 November 2019, attached to his application for the visa the applicant refers to his family ties to Australia, and refers to the fact that his parents, eldest brother and second brother are Australian permanent visa holders, and that his parents own a house in Perth. The Tribunal does not find that the fact that family members are the holders of Australian visas necessarily means that the visa applicant has substantive personal ties with Australia. The Tribunal does not find that the fact the visa applicants parents own a property in Perth is not evidence that the visa applicant has substantial personal ties with Australia.

35. The evidence of the visa applicant in relation to his wife’s visa status in Malaysia has been considered.  The visa applicant’s wife is not a visa applicant and not a party to the review. She is not a connection to Australia.  The Tribunal accepts the visa applicant wishes to bring her to Australia, if they are both granted a visa.

36. After assessing all the evidence in relation to the personal and family ties with Australia, the Tribunal is not satisfied that the visa applicant has substantial personal ties with Australia that are of benefit to Australia.

37. For the above reasons, 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.

    Does the applicant meet the prescribed residency requirements?

38. 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).

39. 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].

40. As 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 benefit to Australia, the Tribunal is not required to make findings as to whether the visa applicant also meets the requirements of cl.155.212(3)(a) or (b).

41. Given the findings above, the Tribunal finds that the applicant does not meet the requirements of cl.155.212(3).

    Does the applicant meet the family member criterion?

1. Subclause 155.212(4) is met if at the time of application the applicant is a member of the family unit of a person who:

   ·has been granted a Subclass 155 visa and that visa is still in effect; or

   ·meets the requirements of 155.212(2), (3) or (3A) (relating to presence in Australia, substantial ties, and absence from Australia) and has lodged a separate application for a Class BB visa. For visa applications made before 1 July 2012, the person may lodge a separate or combined application.

2. There is no evidence before the Tribunal that the visa applicant is a member of the family unit of another person who has been granted a Subclass 155 visa and that visa is still in effect, or alternatively the visa applicant is the member of the family unit of a person who meets the requirements of  cl.155.212(2), (3), or (3A). Accordingly, the Tribunal is not satisfied that the applicant meets the requirements of cl.155.212(4).

3. For the reasons set out above, the Tribunal finds that the visa applicant does not meet the requirements of cl.155.212(2), (3), (3A), and (4).

4. For these reasons, the Tribunal finds the applicant does not meet the requirements of cl.155.212.

5. Therefore, the Tribunal finds the visa applicant does not meet the criteria for the grant of a Subclass 155 visa.

   Requirements of subclass 157: cl.157.212

6. As the Tribunal finds that the visa applicant does not meet the requirements of cl.155.212, and therefore cannot meet the requirements for the subclass 155 visa, it has proceeded to consider whether visa applicant meets the alternative requirements for the Subclass 157 (three month resident return) visa.

7. Clause 157.212 (1) requires that the applicant meets the requirements of either subclause (2) or (3).  Cl.157.212(2) requires that the applicant meets the requirements of both (a) and (b).

8. The applicant meets the requirements of cl.157.212(2)(a), as he was lawfully present in Australia for a period, or periods, the total not less than one day, but less than two years in the period of five years immediately before the time of application; the Tribunal finds that the applicant was lawfully present in Australia for 34 days in the period of five years immediately before the time of application. Further the applicant meets the requirements in the subparagraph (i) as during the time he was lawfully present in Australia he was the holder of a permanent visa, namely the subclass 155 resident return visa, and was not the holder of the visas listed in subparagraph (ii).

9. Cl.157.212(b) requires that either (i) the applicant has compelling and compassionate reasons for departing Australia; or (ii) if outside Australia, had compelling and compassionate reasons for his or her last departure from Australia.

10. As the visa applicant is outside Australia, he is required to meet the requirements of cl.157.212(b)(ii).

11. The Tribunal accepts that if the visa applicant departed Australia because he was unable to obtain employment in Australia and departed Australia for the purposes of obtaining employment in another country, that this may amount to compelling and compassionate reasons. However based on the visa applicant’s evidence he returned to Australia in 2014  for a period of three months to try and obtain employment and was unable to do so. The visa applicant stated he has returned to Australia to visit since the time he came back to Australia to try to obtain employment in 2014. The evidence before the Tribunal is not that the applicant last departed Australia in order to try to find employment. The evidence of the visa applicant is that he has been employed in the family’s [business] in Malaysia since 2015. The visa applicant returned to Australia for visit in October 2018 of 20 days.

12. The evidence of the visa applicant in relation to his wife circumstances do not apply to the reasons for his last departure from Australia in October 2018.

13. There is no evidence before the Tribunal that the visa applicant had compelling and compassionate reasons for his last departure from Australia in October 2018.

14. Therefore, the Tribunal finds that the visa applicant does not meet the requirements of cl.157.212(2)(b)(ii).

15. For this reason the Tribunal finds the visa applicant does not meet the requirements of cl.157.212(2).

16. Accordingly, the visa applicant does not meet the requirements of cl.157.212.

    DECISION

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

    Margie Bourke
    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.