Anthony (Migration)

[2021] AATA 2050

Anthony (Migration) [2021] AATA 2050 (4 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sandra Mary Anthony

CASE NUMBER:  1920892

HOME AFFAIRS REFERENCE(S):          BCC2019/1568082

MEMBER:Michael Cooke

DATE:4 June 2021

PLACE OF DECISION:  Sydney

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(3A) of Schedule 2 to the Regulations

Statement made on 04 June 2021 at 12:43pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – last held permanent visa more than 30 years ago – substantial ties of benefit to Australia – only son an Australian citizen – compelling reasons for absence – support for parents, especially elderly father after mother’s death – financial difficulties – decision under review remitted

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

CASE
Paduano v MIMIA [2005] FCA 211

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 24 July 2019 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 for the visa on 24 July 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 (the Regulations). Relevantly to this case, they include cl.155.212.

3. The Tribunal has had the benefit of a submission and additional information from the applicant wherein she seeks to establish that she can meet the criterion in cl.155.212(3A).

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.155.212(3A) because the delegate was not satisfied that the applicant has provided evidence of substantial ties that are of benefit to Australia

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant has substantial ties with Australia.

   Lawful presence/substantial ties

7. 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.

8. In this case, the applicant is seeking to meet cl.155.21(3A).

9. The applicant does not claim to meet any of the other subclauses in cl.155.212. As the applicant was in Australia at the time of application, the applicant cannot meet cl.155.212(3).

   Does the applicant meet the substantial ties criterion?

10. Subclause 155.212(3A), as extracted in the attachment to this decision, requires that if the applicant is in 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. It also requires the applicant to have a particular residency history.

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

11. The applicant has provided additional information indicating she has substantial personal ties with Australia that are of benefit to Australia. The applicant is a single parent of one child (her son). He is an Australian citizen and has relocated to Australia from the UK. She has also indicated that she has re-engaged with friends from an earlier time.

12. Accordingly, the Tribunal is satisfied that at the time of application the applicant had substantial personal ties with Australia that are of benefit to Australia.

    Does the applicant meet the prescribed residency requirements?

13. In addition to having substantial ties with Australia, cl.155.212(3A) requires that unless there are ‘compelling reasons for the absence’, the applicant has not been absent from Australia for a continuous period of 5 years or more since the date the applicant’s most recent permanent visa was granted or the date he or she ceased to be a citizen.

14. 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].

15. The Tribunal finds that the date of the grant of most recent permanent visa was 3 June 1988. Therefore, the applicant had been absent from Australia for a continuous period of 5 years or more since the date that her most recent permanent visa was granted. The applicant has been resident in Australia since she lodged her visa application on 28 March 2019.

    ‘Compelling reasons for the absence’

16. Therefore, as the applicant does not meet the prescribed residency requirements the Tribunal has explored whether the applicant has submitted ‘compelling reasons for her absence’ sufficient to meet cl.155.212(3A)(b)(i).

17. She has done so (further to the fuller explanation for the reasons for her absence she submitted) in a Statutory Declaration as follows:

    In his own considerations, Judge Neville (in Paduano) further clarified that a compelling reason does not necessarily require extraordinary circumstances:

    ... Among other things, the "ordinariness" of the Applicant's reasons for remaining in Italy for as long as he did, do not, thereby, render those reasons any less compelling than other, perhaps, more extraordinary reasons." (paragraph 48)

    In the case of Paduano, the applicant had been absent from Australia for 25 years because he felt bound by a sense of obligation to his family in Italy. In the case of Cirillo, the applicant had been absent for 17 years, also because of family obligations.

    In my case, I was absent for 27 years beyond the three I was allowed and I, too, was constrained by family obligations; the first of these was the moral imperative to provide support to my elderly father after my mother died. Subsequent to my father's death, I was further constrained by my grown-up son choosing to continue living in the UK. When he did decide to resettle in Australia, I was engaged in building a house and was also experiencing financial difficulties so decamping to Australia would have been beyond my abilities.

    As a single mother, my relationship with my son is central to my life, so living within easy travelling distance to him was a very compelling reason, both to stay within the British Isles when he was living there and to move back to Australia when he re-located here. In Paduano's case, when his daughter settled in Italy, his strong psychological and familial bonds with her meant that he, too, stayed there until she chose to return to Australia in 1996, at which point, he joined her here the following year even though, by then, he was in his 70s. I see many parallels between Paduano's situation and my own.

18. The Tribunal has examined the applicant’s case with the benefit of her additional information. In her Statutory Declaration the applicant outlined her recent family history and the various travails she encountered which led to her extensive sojourn overseas. She had to juggle a role as the responsible daughter of elderly invalid parents living in Britain and that of a single mother of an only child - who much later chose to relocate to Australia. She has elaborated a potted history of the difficulties she has encountered in trying to perform both roles properly whilst simultaneously without any substantial assistance. She has made out a credible case for this being the causal factor in the longevity of her stay in the British Isles.

19. The Tribunal is satisfied that her explanation is ‘compelling’ ii the light of Paduano as:

    ‘the reasons for the absence are forceful, and therefore convincing’.

20. The Tribunal finds that the information has established to the Tribunal’s satisfaction that she has ‘compelling reasons for the absence’ for a continuous period of 5 years or more since the date of her most recent permanent visa was granted.

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

    Conclusion about cl.155.212(3A)

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

23. 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

24. 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(3A) of Schedule 2 to the Regulations.

    Michael Cooke
    Senior 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).

    …

    (3A)The applicant meets the requirements of this subclause if the applicant is in Australia, and the Minister is satisfied that the applicant:

    (a)has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia; and

    (b)has not been absent from Australia for a continuous period of 5 years or more since:

    (i)the date of grant of the applicant's most recent permanent visa, unless there are compelling reasons for the absence; or

    (ii)the date on which the applicant ceased to be a citizen, unless there are compelling reasons for the absence.