Ali (Migration)

[2018] AATA 1533

Ali (Migration) [2018] AATA 1533 (14 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yusuf Ali

VISA APPLICANT:  Ms Farah Naz Naqvi

CASE NUMBER:  1515609

DIBP REFERENCE(S):  14/05/0006

MEMBER:Karen Synon

DATE:14 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Return (Residence) (Class BB) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 155 (Five Year Resident Return) visa:

·cl.155.212(3) of Schedule 2 to the Regulations.

Statement made on 14 May 2018 at 10:07am

CATCHWORDS
Migration – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – Whether the applicant has substantial ties to Australia – Substantial family ties in Australia – Ties to home country significantly weakened over time - Whether ties are of benefit to Australia – Significant benefit to Australia citizens – “Genuine intention” to reside in Australia not determinative – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 155.212(3)

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 9 September 2015 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).

2. The applicant applied to the Department of Immigration for the visa on 6 June 2014. 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) because the delegate was not satisfied that the visa applicant had demonstrated substantial ties which are of benefit to Australia and there were not compelling reasons why the applicant had been outside Australia for a continuous period of five years or more.

3. The visa applicant’s son, Mr Yusuf Ali (the review applicant), applied for review of the primary decision on 16 November 2015 and provided a copy of the department’s decision to the Tribunal.

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

5. The review applicant appeared before the Tribunal on 25 February 2016 to give evidence and present arguments.  The Tribunal also received oral evidence from the visa applicant by telephone from Pakistan and her son, Mr Waqar Ali, gave witness evidence.  The review applicant’s representative was present throughout the hearing.

6. The Tribunal took the following evidence from the review applicant:

   ·     The review applicant was granted Australian citizenship in 2003 and his brother obtained his citizenship at the same time.  His father is also an Australian citizen.  His father married someone in Pakistan and brought her to Australia to live; he has two children from this marriage.  The review applicant explained that his mother originally immigrated to Australia in 2003 on a working or skilled visa.  At the time she was an educator.  At the time the review applicant was 13 years old so may not have an accurate recollection of these facts.  His mother was in Australia for two or three weeks initially and then she returned to Pakistan by herself.  She originally came with her husband (his father) and his brother.  His father stayed in Australia along with his two brothers.  At the time his mother had her brother and his family living in Australia with her mother and an aunt.  He does not know on what basis his mother’s extended family came to Australia.  Since arriving here in 2003 he, his brother and father have lived here permanently, only returning to Pakistan for visits.  From what he recalls, his mother was granted a Return Resident visa in 2003 or 2004 and visited Australia, again for two or three weeks, and then she returned to Pakistan due to her work commitments.  He believes that visa was valid until 2007 and during that period his mother visited a couple of times and both he and his brother visited Pakistan regularly.  Also during that time there was a period when his brother lived permanently in Pakistan for about 18 months.  His father remained in Australia throughout the entire period and he and his mother separated not long after they came to Australia.  He does not know when they divorced.  During this time his mother was employed as a school principal in Pakistan and he understands she applied for an extension of her Return Resident visa in 2007.  She visited Australia in 2008 and 2009.  He thinks the final visa was applied for in 2010 and rejected.  The Tribunal commented that this last visa was not applied for until June 2014.  His mother remarried in Pakistan in about 2008 or 2009; they divorced or separated, he believes in 2010.  His mother remarried again in about 2011 and she has recently divorced from her third husband.  His uncle, his mum’s brother and his family, arrived in the 1990s before their family arrived in Australia.  His uncle brought his mother (the review applicant’s grandmother) to Australia.  His grandmother’s sister is also resident in Australia.  His mother has no other siblings.  His mother’s father died when she was quite young.

   ·     The Tribunal confirmed with the review applicant that his mother has never resided in Australia despite being granted a skilled visa and two return resident visas.  Invited to comment on the delegate’s decision the review applicant highlighted that all of his mother’s family are now in Australia and she has no personal ties left back in Pakistan.  Secondly, his mother had to finish paying off two properties before she could sell them.  They are currently on the market.  Thirdly, his mother was in an abusive relationship with her third husband (from whom she has recently divorced) and was being mentally controlled and manipulated by him.  The property where she was living was owned by her employer and she is no longer living there.  Further, his mother’s third husband remarried while he was living with his mother and brought this wife to live at the same house.  Even though this is lawful in Pakistan, it was very difficult for his mother.

   ·     The review applicant also highlighted his mother’s family ties in Australia and noted that he has not spent a lot of time with his mother and she has experienced a lot of difficulties and they would like their mother to come to Australia to live with them so that they can care for her.  He was 12 when he came to Australia to live and his brother was 14.  The Tribunal noted that his mother did not appear to have been concerned about maintaining family ties while living in Pakistan throughout their formative teenage years but now, wants to live here.  He responded that he believes this was due to the relationship between his mother and his father.  He visits his mother in Pakistan annually and these visits vary between four weeks and three months.  He talks to his mother online or via Skype every day or second day.  His mother is 46 now.  Asked why she would retire at such a young age, the review applicant said he does not believe his mother intends to retire but rather to come here to live for a couple of months and then eventually work as an educator here.  His mother has a bachelor of education, a master of business administration, various educational certifications and has been employed as a principal at a school in Pakistan. 

   ·     Invited to comment on the compelling reasons for the absence of his mother from Australia for more than five years the review applicant responded that his mother had an employment contract which ended in June 2016 which had a condition that if she was to resign before this she would lose her pension fund (“similar to some salary sacrifice here”).  She commenced in this position in 2007.  The Tribunal noted it had no evidence before it that that contract will not be extended given that contracts are often rolled over.  The review applicant said that when this contract finishes his mother will have nothing left in Pakistan; she is divorced from her third husband and has two properties which are both on the market.  The main reason she has not previously returned to Australia was due to her third husband’s controlling behaviour; he did not want her to move to Australia.  She was only allowed to visit Australia.  His mother also has her mother and aunty here and her aunt is quite unwell.  His grandmother and great aunt live in a house owned by his uncle, which is quite close to his uncle and his mother will reside with them.

   ·     Asked how these claimed substantial personal ties are of benefit to Australia, the review applicant said his mother will be living with her family as a unit and all her family are Australian citizens who have no intention of going back to Pakistan as they all have employment here and homes here and they go forward here.  Further, when his mother returns to Australia, she will work as an educator either in a school or in the department and so will be of benefit to the youth in Australia.  In addition, having his mother in Australia will also be mentally satisfying for him given the difficult times she has been through as it has been stressful for them being away from her as she has gone through divorces.  His mother will also be bringing the proceeds from selling her properties in Pakistan to Australia, and so will be able to support herself independently and spend the money on her close family such as her mother and her aunty.

   ·     The Tribunal noted that it maintained concerns that his mother was granted a skilled visa in 2000 to come here to work as an educator and yet 16 years later the visa applicant has still not come to Australia to work as an educator, despite claiming she now wishes to do so.  The review applicant submitted that what happened in the interim must be considered and his mother had persuasive reasons not to come to Australia.

   ·     Following his mother’s evidence the review applicant noted that his mother is quite emotional because she has been through a lot and has been through a few marriages and divorces and emphasised that her circumstances in Pakistan are different to here and they just want her to live here with them so that she can live in peace.  Given the nature of things in Pakistan if her husband was telling her one thing, she would be persuaded by him and the purpose of his mother purchasing the properties was to get something for herself, and assets she could later realise.  Invited to again address the compelling reasons why his mother has been absent from Australia for more than five years, the review applicant said his mother has literally nothing left in Pakistan and she is very ready and willing to move here.  The reason she could not before is due to her marriage and divorces.  The review applicant submitted that as a female in Pakistani society she brushed off the arguments and problems in her marriage and did not really realise the abuse that was happening in her marriage.

7. The Tribunal also took witness evidence from Mr Waqar Ali, another son of the visa applicant:

   ·     Mr Waqar Ali said that near the end of last year, his mother told him about the problems in her marriage and that her current husband had remarried, and asked for his assistance in getting out of the situation.  Mr Waqar Ali went to Pakistan and helped to relocate her and went through the court process with her, applying for a divorce and completing all the legal work.  Then he returned to Australia.  They have been waiting for a response on this visa for which they have applied for an extension.  The Tribunal advised his mother had applied for a further visa, not an extension.  In the meantime they applied for a visitor’s visa for his mother but this was refused.  Mr Waqar Ali said his mother and her third husband did not separate until he arrived in Pakistan and helped her relocate.  The Tribunal noted that this visa had been applied for in June 2014 and this appeared to be before her relocation and separation from her third husband and that her third husband was not an applicant on this visa application.  Mr Waqar Ali said her third husband was controlling and did not want to come to Australia.  The Tribunal noted that therefore his mother appeared to have made the decision to live separately from her third husband back in 2014, long before the separation.  Mr Waqar Ali said he believes his mother married her third husband in 2009 but throughout the marriage she did not have the rights and freedoms people should have and that is why he decided to take leave from his employment to go and assist her.  The Tribunal noted that his mother had the right to return to Australia up until 2014 but appeared to have stayed in Pakistan despite the claims being made that she was in an abusive marriage.  Mr Waqar Ali said his mother had an employment contract. 

8. The Tribunal took the following evidence from the visa applicant by telephone from Pakistan:

   ·     The visa applicant said she has two reasons for staying back in Pakistan.  Firstly she has been working for the army and she made a contract with them that expires in June 2016, and if she left her job before that she would lose her money in her provident fund.   Secondly, she has a house and plot which she was paying instalments on and she could not sell them until all the instalments were clear.  Also, she was married and it was a problematic relationship during the last 12 months and her husband was very controlling and was not willing to move to Australia or to let her go; he only allowed her to visit.  Now she is divorced and is all alone there and considers Australia her home.  She thinks with her educational qualifications and experience, including courses from the United Kingdom, that she can be very good person for Australia and educating the youth and she needs to look after her mother and her aunt who are very sick.  She has very close relationships with the children, her mother and her aunt and her brother.

   ·     The Tribunal asked the visa applicant when she bought her house.  She responded that she purchased it in 2013; almost three years ago.  She also bought a plot on 17 January 2013. 

   ·     In response to an invitation to explain the dates of her various marriages and divorces the visa applicant said she first married in December 1986 and thinks (she cannot actually remember) she divorced in 2004/2005.  She married for a second time in September 2008 and divorced in January 2009.  This marriage was so short because he married her to get Australian citizenship and was not fair with her and did not tell her about this.  When she came to know about this she called the Australian embassy in Pakistan and they cancelled his spouse visa.  She married a third time in August 2009 and divorced on 28 January 2016.  The abuse started last year because “she came to know” her husband “got married to another girl” so she called her eldest son and he came to Pakistan.  The marriage had problems before then but the mental abuse started a year ago.  The Tribunal noted that when she applied for this visa in 2014 she did not list her third husband as a dependent.  The visa applicant said the main problem in their marriage was that she wanted to move to Australia but he did not; he was not interested in coming to Australia. 

   ·     The visa applicant was employed in March 2007 as a school principal and it is an ongoing contract reviewed every three years.  She is also a teacher trainer and audits other schools.  She told her employer she would not be able to continue beyond June 2016.  When the contract expires they have a meeting and discuss mutually if it will continue.

   ·     In response to a question asking the visa applicant to explain her visa history she detailed the following:

   oIn 2000 she was granted a 105 skilled visa on the basis of a teaching position in a Montessori school.  At the time she was planning to shift here but her circumstances changed.  She agreed she never worked as a teacher in Australia and left within a month.  She had planned to be here permanently but because of circumstances could not do so.  She had a bad married life.

   oHer second visa, a 155, was granted in 2005 (2004) for five years.  The visa applicant said she never lived here due to her circumstances but did keep visiting.  The Tribunal noted that resident means that someone intends to reside in Australia, not just visit.

   oHer third visa, another 155 visa, was granted in 2009 and was valid until August 2014.  The Tribunal noted that again when she applied for her second return resident visa she would have needed to satisfy the delegate that she intended to return and reside in Australia permanently and asked if she had advised the department that she would reside here permanently.  The visa applicant said yes.  The main reason she did not return to Australia to live permanently during the period of this visa were: her employment contract; her property and her husband.  She was trying to settle down in the marriage but it did not work out.  Asked why she purchased property in 2013 when she was presumably planning to return to Australia to live permanently within her visa validity (2014), the visa applicant said her (third) husband was not working so they had no savings and she wanted some money for when she went to Australia finally.  The visa applicant has been visiting Australia regularly.  She kept emphasising that she had three problematic marriages and priorities change and she had to support herself.  She has now finally decided to come here and be with her mother and aunt who are sick.  The visa applicant wants to get a job here.  She is all alone in Pakistan.

   ·     Invited to provide any additional evidence, the visa applicant said that there are humanitarian grounds because her mother and aunt are living alone and it is very tough and she wants to be with her family and settle down in Australia.  If her mother dies here she cannot come to Australia for the funeral.  Being a female in Pakistan is not so independent and because of this she could not continue to stay here for two years.  The Tribunal put to the visa applicant that she had 14 years in which she had the right to settle in Australia but had not done so.  The visa applicant responded that she had three bad marriages and is not as easy as a female in Pakistan.  The Tribunal put to the visa applicant that as she had on two occasions stated that she intended to return to live in Australia permanently (that is the basis on which the previous two Return Resident visas were granted) how could it be assured that she now intends to settle permanently in Australia should she be granted a further Return Resident visa.  The visa applicant responded that her responsibilities in Pakistan have ended, her employment contract has expired and her house and land are paid off and her whole family is living here.  She does not maintain contact with her third husband as they live very far from each other and he is living with his wife.

9. At the conclusion of the hearing the representative provided a brief oral submission contending that genuineness is not a criterion of the visa and that the visa applicant’s substantial ties have not changed; she has never had an ability to come to Australia and work.  The representative said this whole case rests on compelling reasons and the visa applicant never had an obligation to come to Australia and work under her skilled visa.  The Tribunal clarified with the representative that he understood it required the following evidence to be provided:

   ·copies of the two previous applications for Return Resident visas;

   ·the marriage and divorce certificates for all marriages;

   ·confirmation that the visa applicant has placed her properties on the market for sale;

   ·evidence of the citizenship of all her family members; and

   ·a letter from the school saying there will be no further employment contract post June 2016.

1. Throughout the course of the review, including in response to issues raised at the hearing, the following documents were provided:

   ·A submission (undated) but provided with the application for review which sets out a timeline, travel dates, the visa applicant’s ties to Australia and her current circumstances;

   ·A letter from the visa applicant to the Australian High Commission;

   ·Family Registration Certificate, Government of Pakistan;

   ·A letter confirming the review applicant’s employment as a Marketing Manager since January 2013;

   ·A letter confirming the review applicant’s brother’s employment as an IT Administrator since 3 March 2014;

   ·A letter confirming Ayesha Ghafar’s employment with Medibank Private from November 2015 as an IT Administrator since 3 March 2014;

   ·A translated copy of the visa applicant’s marriage certificate recording her marriage to Syed Ammar Ali Shah on 11 December 1986;

   ·A copy of the visa applicant’s Australian Certificate of Divorce from Ammar Ali Shah effective 19 September 2006;

   ·A translated copy of the visa applicant’s marriage certificate recording her marriage to Ammir Shahzad on 10 October 2007;

   ·A copy of the visa applicant’s ‘Divorce (Three Times)’ from Ammir Shahzad on 14 January 2009;

   ·A translated copy of the visa applicant’s marriage certificate recording her marriage to Akhtar Majeed on 15 August 2009;

   ·Translated documents comprising court papers in which the visa applicant appear to be suing for divorce from Akhtar Majeed and the divorce decree effective 28 January 2016;

   ·A copy of the visa applicant’s Pakistani Family Registration Certificate which lists her and her two sons;

   ·A copy of the visa applicant’s Contract of Employment as the Principal of Army Public College, Sialkot Cantonment for the period 12 June 2007 until 11 June 2010;

   ·A copy of the visa applicant’s Contract of Employment as the Principal of Army Public School (Girls Branch), Sialkot Cantonment for the period 12 June 2010 until 11 June 2013;

   ·A copy of the visa applicant’s Contract of Employment as the Principal of Army Public School (Girls Branch), Sialkot Cantonment for the period 12 June 2013 until 11 June 2016.  Relevantly this contract states it is “extendable beyond with mutually agreed terms and conditions”;

   ·A letter dated 8 July 2009 certifying that the visa applicant is employed as a Principal of the Army Public School and College with a period of contract from 12 June 2007 until 11 June 2010 and stating that, in accordance with her contract, should she resign before the completion of her contract she will not be eligible to “get her provident fund”;

   ·A copy of a letter dated 29 May 2014 in which the visa applicant supports her application for the visa;

   ·A submissions from the representative received 11 February 2016;

   ·A copy of the department file in relation to the visa application under review;

   ·A copy of the department file in respect of the visa applicant’s 155 visa application lodged 24 November 2004 and granted on 2 December 2004, valid until 2 December 2009. In this application the visa applicant stated:

   I wish to apply for a RRV on the following grounds:

   1.My resident visa is expiring on 24-01-05.

   2.Due to my property at Faisalabad which is on lease from April 04 to April 07, I cannot sell it off during the lease period and there is no one else in Pakistan to look after all the matters.

   3.I am doing a regular and permanent job as Vice Principal in a Private School since August 1998.  I am bound to complete tenure of another five years to get all of my provident fund benefits.  It is an International school system having 131 branches in 29 cities of Pakistan and 5 branch (sic) abroad in different countries

   4.My mother is sick and there is no one to look after her at Pakistan due to my father’s death.  She also has a citizenship of Australia.

   5.I have one brother who is living in Australia from last 15 years with his family as permanent resident.

   6.My husband and two kids having permanent citizenship of Australia are also residing in Australia.

   Due to the above reasons, are unable to go to Australia and if there permanently for the time being.  Kindly grant me a RRV for another five years that I can wind up my property in Pakistan, during this period and be with my family permanently.

   ·A copy of the department file in respect of the visa applicant’s 155 visa application lodged 13 July 2009 and granted on 18 November 2009 valid until 6 August 2014  In this application the visa applicant stated:

   Enclosed please find my application for the extension of my Resident Return Visa which is expiring on 2 December 2009 subclass 155 due to following reasons

   1.At present I am employed as Principal with Army Public School and College Sialkot Cantt on a contract basis which is valid till 11^th June 2010.  If I resign before that, I will not be paid my provident fund, which will be great loss for me.

   2.My son Waqar Ali having Australian citizenship is studying in Second Semester at University of South Asia Lahore in a four-year  BBA program.  I’m bearing all his expenses of studies and living and there is no one else in Pakistan to look after him. 

   3.My property is on rent which is worth 5 millions (sic) and I’m trying to sell it off but due to the economic crises at Pakistan I am unable to do so.  I will be transferring all this amount to Australia to invest in a business later. 

   4.All my family members including my brother, his family, my younger son Yusef Ali and my mother Australian citizens and our residing at 10 Alexander Avenue Coburg 3058 Victoria Melbourne.  If I do not get my RRV extended I cannot visit them on regular basis.

   5.Enclosed also find my previous passport with resident visa and a new passport as previous was expiring along with proof of all above points

   On keeping all the above reasons is humbly requested to extend my RRV for another five years. 

   ·Further, in response to a request from the department for further information the file contains an email which the visa applicant sent on 17 August 2009, in which she relevantly states:

   I was granted my Australia visa in 2000.  But after that I developed clashes with my husband Mr Ammar Ali Shah and we were divorced.  This divorce was registered in 2006 in Australia when he wanted to remarry.  It was registered in Pakistan in 2004 in Pakistani court, but since April 2000 we were divorced as per Islamic law and I could not stay in Australia.  Moreover my property was on rent to Dawlance company on a contract of 4 years (369 Junnah Colony Faisalabad) and my mother wo is also an Australian citizen was sick and their (sic) was no one to attend her or the property in Pakistan.  At the time I was doing my job with The City School System and in case of resighn (sic) as I had signed a bound (sic) with time they refused to pay my provident fund which was a heavy amount and y certificates. 

   Due to these two reasons I had applied for resident return visa in 2005 till 2009 which is again expiring now.  At that time I had sent all the documentary proofs with my application which must be in your record.  I had sold that propert (sic) now.  At present my elder son waqar (sic) Ali is studying at University of South Asia at Lahore and I am supporting him as his father remarried. So I cannot leave him.  Moreover my house is for sale which is worth fifty lakh but due to economic crunch I am not getting a good price.  I am working as principal and Army Public School and my bound expires in 2010 and if I resign before that again my fund will be withheld.  Due to these above reasons I have again requested for a extension of my Resident Return visa for another five years, I assure you that before the end of this extension I will permanently fly to Australia.  That is my home now as my brother his family my mother my younger son all in Australia settle permanently.  Due to the above pressing reasons being a single parent and a single lady trying to manage all affairs all alone I have to stay at present in Pakistan…

2. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. At time of application, an applicant for a Subclass 155 visa must meet one of four 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.

4. The delegate refused the visa on the basis that the visa applicant had only spent 46 days in Australia in the five years before the decision and therefore did not satisfy cl.155.212(2), and the visa applicant did not have substantial personal, business, employment or cultural ties to Australia which are of benefit to Australia.

5. The issue in this case is therefore whether the visa applicant meets one of the four alternative requirements set out in cl.155.212.

   Lawful presence in Australia

6. It is without contention that the visa applicant was the holder of a permanent resident visa at the time of application on 6 June 2014 but that she was not lawfully present in Australia for a period of, or periods that total, not less than two years in the period of five years immediately before the application.  A submission provided to the Tribunal records the visa applicant as being lawfully present in Australia during the relevant five year period as: 15 January 2010 to 3 February 2010, 18 July 2011 to 3 August 2011 and 28 June 2013 to 25 July 2013.  These three short visits do not total a period of not less than two years.  Therefore the visa applicant does not satisfy the first limb of cl.155.212, namely cl.155.212(2).

7. Further, as the visa applicant was outside Australia at the time of application, she cannot meet cl.155.212(3A).

   Does the applicant meet the substantial ties criterion?

8. 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 she has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.

9. Additionally, the visa 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 visa applicant have substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia?

10. The Tribunal notes that the Regulations do not define ‘substantial…personal…ties with Australia which are of benefit to Australia.  Therfore the Tribunal has referred to the department policy in PAM3 which provide examples of circumstances that may indicate personal ties with Australia including, in this instance relevantly, “close family members (that is, of a type for which family reunion might be available under the Family Stream of the Migration Program) who have substantial residence in Australia and are Australian permanent residents or Australian citizens”.

11. While the Tribunal cannot be bound by department it finds it persuasive in the circumstances of this case and notes that all of the visa applicant’s immediate family members are Australian citizens based on the documentary evidence provided and that she is divorced from her third husband who lives in Pakistan (and detailed above).

12. When considering if these personal ties of an benefit to Australia, the Tribunal again refers to department policy in PAM3 which states that the visa applicant’s :

    ties enrich the lives of individual Australian residents and citizens and 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.

13. The Tribunal records its serious concerns about the visa applicant’s genuine intention to return to Australia to reside here permanently and notes department policy in PAM3 which states that the purpose of the Return (Residence) visa is to facilitate the re-entry into Australia of non-citizen permanent residents, former permanent residents and former citizens and ensure that only those people who have a genuine commitment to residing in Australia.[1]However, while the Tribunal may be guided by department policy, it is not permitted to elevate this to the level of a regulation.  The Tribunal notes its regret that a ‘genuine intention’ requirement is not reflected in the regulations and so, while the Tribunal finds the visa applicant’s past visa history to be a of great concern and expresses its doubt that the visa applicant will return permanently to reside in Australia, it has no option but to merely document these concerns.  The Tribunal notes that although the visa applicant gave sworn evidence that she would be selling her house and land plot and concluding her employment contract on 30 June 2016, despite the considerable time that has passed since then, she has failed to provide any evidence to the Tribunal that she has in fact concluded her employment or sold her assets in Pakistan.  Further, in copies of the visa applicant’s previous Return Resident visa applications provided following the hearing she relies on similar reasons for not returning to Australia to reside permanently being; her ongoing employment contract, her property commitments and that fact that she would lose access to her provident funds if she concludes her employment contact early  In one of these applications lodged 9 years ago the visa applicant declares” I assure you that before the end of this extension I will permanently fly to Australia”.[2]  She has clearly not done so.

    [1] Tribunal’s emphasis

    [2] Tribunal’s emphasis.

14. However, despite these serious concerns about the truthfulness of the visa applicant’s evidence that see intends to return to Australia and reside here permanently, the Tribunal accepts that the presence in Australia as Australian citizens, of the visa applicant’s two sons, mother, aunt, brother and her brother’s family do constitute substantial personal ties to Australia and that the visa applicant’s presence in Australia to support her sons and particularly to care for her aging mother and aunt would be of benefit to Australia.  Accordingly, the Tribunal is satisfied that at the time of application the applicant had personal ties with Australia that are of benefit to Australia.

    Does the applicant meet the prescribed residency requirements?

15. 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 five 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 five years since last departing Australia as a citizen or permanent resident (unless there are compelling reasons for the absence).

16. The Tribunal is satisfied that the visa applicant was not absent from Australia for a continuous period of five years immediately before the application for the visa on 6 June 2014 based on the evidence that she visited Australia on three occasions during that period (as detailed above at paragraph 15).  Also, at the time of the visa application on 6 June 2014, the applicant held a permanent visa[3], being the Return (Residence) (Class BB) Subclass 155 visa that was granted to her on 18 November 2009 and which was valid until 6 August 2014.

    [3] Clause 155.511 – a permanent visa permitting the holder to travel to and enter Australia.

17. Accordingly the Tribunal is satisfied that at the time of application, the applicant meets the prescribed residency requirements.

18. Given the findings above, the applicant meets cl.155.212(3).

19. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 155 visa.

    DECISION

20. The Tribunal remits the application for a Return (Residence) (Class BB) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 155 (Five Year Resident Return) visa:

    ·cl.155.212(3) of Schedule 2 to the Regulations.

    Karen Synon
    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.