Banovic (Migration)

[2018] AATA 116

Banovic (Migration) [2018] AATA 116 (25 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Josip Nikola Banovic

VISA APPLICANT:  Ms Chitchanok Manlayanon

CASE NUMBER:  1716550

DIBP REFERENCE(S):  CLD2017/29681920

MEMBER:Helena Claringbold

DATE:25 January 2018

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 25 January 2018 at 1:04pm

CATCHWORDS
Migration – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – Limited time in Australia – Experience does not amount to substantial business or employment ties – No substantial personal ties – Continued absence

LEGISLATION
Migration Regulations 1994, Schedule 2, cls 155.212(2), 155.213(2), 155.212.9(3A), 155.212(4), 157.213

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 3 May 2017, Ms Chitchanok Manlayanon, the visa applicant applied for a Return (Residence) (Class BB) visa. 

2. On 30 May 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant met cl.155.212(2), cl.155.212(3), cl.155.212.9(3A) and cl.155.212(4) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. 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.

4. On 18 January 2018, Mr Josip Nikola Banovic, the review applicant appeared before the Tribunal to give evidence and present arguments. He provided the Tribunal with a copy of the delegate’s decision record. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Departmental case file CLD2017/29681920 and the Tribunal’s case file 1716550, folios numbered 1-127 and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether the applicant can meet met cl.155.212(2), cl.155.212(3), cl.155.212.93(A) and cl.155.212(4) of Schedule 2 to the Regulations.

   BACKGROUND ON THE EVIDENCE

7. The visa applicant was born in Thailand in 1984. On 21 December 2011, the visa applicant was granted a Partner (Residence)(BS 801) visa. On 3 November 2014, the visa applicant departed Australia.  Information provided in the delegate’s decision record is that the visa applicant spent seven days in Australia, in the period of five years before making the application for the visa on 3 May 2017.

8. The review applicant was born in January 1983. 

9. On 7 August 2009, the parties married. In May 2017, the review applicant stated that the parties plan on living together in Australia.

   Lawful presence/substantial ties

10. At the time of application, the applicant must meet one of the alternative requirements set out in cl.155.212 to the Regulations. 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.

11. In this case, the applicant is seeking to meet cl.155.212 cl.155.212(2), cl.155.212(3), cl.155.212.9(3A) and cl.155.212(4) of Schedule 2 to the Regulations. The applicant does not claim to meet any of the other subclauses in cl.155.212 of Schedule 2 to the Regulations. 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?

12. Subclause 155.212(2) of Schedule 2 to the Regulations is met if the applicant was lawfully present in Australia for a total of not less than two years in the period of five years immediately before the visa application and, during that time, was the holder of a permanent visa or other specified visa or an Australian citizen:

13. Information provided in the delegate’s decision record is that the visa applicant spent seven days in Australia, in the period of five years before making the application for the visa on 3 May 2017, as an Australian citizen or permanent visa holder or the holder of a specified visa.

14. Accordingly, the applicant does not meet cl.155.212(2).

    Does the applicant meet the substantial ties criterion?

15. 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.

16. 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?

17. The review applicant told the Tribunal the following: the visa applicant has substantial personal ties with Australia that are of benefit to Australia. The parties have been married since August 2009.  The visa applicant departed Australia in October 2011 and returned to Australia to visit him in November 2014 and the parties have remained in daily contact. He provided information including various chat records and copies of telephone records.  He told the Tribunal that a letter written by the visa applicant in 2010 or 2011 had been provided to the Tribunal.  There is no identification in this letter of either the writer or the recipient.  However the author talks of her love for the recipient and of wanting to be the recipient’s husband and of problems coming into their lives should the author remain.  The review applicant stated that, at that time, the visa applicant was unhappy because she couldn’t find suitable employment in Australia and her previous legal studies were not recognised in Australia.  He said that the visa applicant returned to Thailand to complete legal studies. He told the Tribunal that she worked for several international companies and believed that her additional experience would benefit Australia on her return. He said that the visa applicant has since changed her career path and is involved in competition level windsurfing and is ranked second in Thailand for stand up paddle boarding.  In addition, he said that the visa applicant has qualified as a yoga instructor and wanted to become qualified in aged care. While the Tribunal may accept that the applicant wanted to complete her legal studies and believed her additional skills would benefit Australia, it does not accept that the experience she gained working for these companies amounts to substantial business or employment ties with Australia that are of benefit to Australia.  The evidence provided to the Tribunal is that the applicant worked for one company as a communications specialist under a human resources department for approximately 14 months and as a general affairs representative for another company for approximately three months.

18. The Tribunal was told by the review applicant that the last time the parties lived together as husband and wife was in 2011.  He said the parties do not have any financial assets or liabilities and have not shared a household since 2011.  However they remained in daily contact.  He said that he visited the visa applicant in 2013 and the parties had 10 to 12 days together in a hotel in in Rayong. In addition, he told the Tribunal that the visa applicant visited him in 2014 and the parties had seven days together in Australia.

19. The Tribunal put to the review applicant under the relevant provision the visa applicant’s history in Australia.  He was told that since the parties married in August 2009 the visa applicant has spent limited time in Australia.  In 2009/2010 she spent approximately 375 days, in 2011 she spent approximately 25 days and approximately six days in 2014. The review applicant stated that at one time she left Australia to care for her grandmother and the other times were because of work and study as detailed in this decision record. At the time of visa application, the visa applicant had spent seven days in Australia in the period of five years immediately before making the visa application on 3 May 2017.  The review applicant told the Tribunal that he had not visited the visa applicant since 2013 because of work commitments.  The Tribunal accepts that the parties married in 2009.  It also accepts that since the visa applicant departed Australia in November 2014, the parties have communicated with each other.  While the review applicant told the Tribunal that the visa applicant intends to return to Australia and the parties will live together, the Tribunal is not satisfied, even after considering the departmental Procedures Advice Manuel (PAM3), that the parties’ relationship presents personal ties with Australia that are of benefit to Australia.  Since the parties marriage in 2009 the applicant has lived with the sponsor in Australia for a limited time.  Since the grant of the permanent visa on 21 December 2011, the visa applicant has spent approximately seven days in Australia.  As detailed on the visa application form, since departing Australia in 2014, the visa applicant has travelled to France in 2015 and Vietnam and the USA in 2016.

20. Accordingly, 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.

21. Given the findings above, the applicant does not meet cl.155.212(3).

    Does the applicant meet the family member criterion?

22. 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 cl.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.

23. The visa applicant has not claimed and there is no evidence that the applicant satisfies cl.155.212(4) Accordingly, the applicant does not satisfy cl.155.212(4).

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

    Subclass 157 - Three Month Resident Return

    CLAIMS AND FINDINGS

25. clause157.213 requires that if the visa applicant is outside Australia the applicant has not been absent from Australia for a continuous period of more than three months immediately before making the application for the visa, unless the Minister is satisfied that there are compelling and compassionate reasons for the absence.

    Are there compelling and compassionate reasons for the absence in Australia?

26. The review applicant provided information about why the visa applicant he departed Australia.  He stated that the visa applicant intended to return to Australia and the parties believed that this wouldn’t present a problem. He told the Tribunal that the visa applicant wanted to realise her dreams by qualifying legally and working for international companies and that she thought this would assist her to find employment in Australia.  However the visa applicant had become involved in competition level windsurfing and is ranked second in Thailand for stand up paddle boarding. She also has qualified as a yoga instructor. He said that the visa applicant’s participation in competition sport prevented her returning to Australia.  

27. While the Tribunal may accept study and work for reasons of absence from Australia, the Tribunal is not satisfied that the visa applicant would not be able to pursue competitive sport without being absent from Australia, particularly when it considers that the visa applicant travelled to France in 2015 and to Vietnam and the USA in 2016. The Tribunal is not satisfied that these circumstances are compelling and compassionate reasons for the visa applicant’s continued absence from Australia.

28. There is no evidence before the Tribunal that the applicant satisfies any of the alternative criteria for the grant of the visa.

29. For the reasons above, the Tribunal finds the visa applicant does not meet the criteria for the grant of a Subclass 157 visa.

    DECISION

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

    Helena Claringbold
    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).

    (2)  The applicant meets the requirements of this subclause if the applicant was lawfully present in Australia for a period of, or periods that total, not less than 2 years in the period of 5 years immediately before the application for the visa and, during that time, the applicant:
    (a)  was:
    (i)  the holder of a permanent visa or a permanent entry permit; or
    (ii)  an Australian citizen; and
    (b)  was not the holder of:
    (i)  a temporary visa (other than a Subclass 601 (Electronic Travel Authority) visa, a Subclass 773 Border visa, Subclass 956 Electronic Travel Authority (Business Entrant — Long Validity) visa, Subclass 976 Electronic Travel Authority (Visitor) visa or Subclass 977 Electronic Travel Authority (Business Entrant — Short Validity) visa) held concurrently with the permanent visa or the permanent entry permit); or
    (ii)  a bridging visa.

    (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.

    (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.

    (4)  The applicant meets the requirements of this subclause if the applicant is a member of the family unitof a person who:
    (a)  has been granted a Subclass 155 visa and that visa is still in effect; or
    (b)  meets the requirements of subclause (2), (3) or (3A) and has lodged a separate application for a Return (Residence) (Class BB) visa.
    Note:     Under clause 155.511:
    (a)  if the applicant is a member of the family unit of a person whose Subclass 155 visa will be in effect for one year or less, the applicant will be granted a visa permitting the holder to travel to and enter Australia for the period of effect; and
    (b)  if the applicant is a member of the family unit of a person whose Subclass 155 visa will be in effect for more than one year, the applicant will be granted a visa permitting the holder to travel to and enter Australia for one year from the date of grant.

    157.213
    If the applicant is outside Australia, the applicant has not been absent from Australia for a continuous period of more than 3 months immediately before making the application for the visa, unless the Minister is satisfied that there are compelling and compassionate reasons for the absence.