Bentham (Migration)

[2020] AATA 5650

Bentham (Migration) [2020] AATA 5650 (12 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Maureen Ann Bentham

CASE NUMBER:  1916358

HOME AFFAIRS REFERENCE(S):          BCC2019/1498223

MEMBER:Hugh Sanderson

DATE:12 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 12 November 2020 at 1:49pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – prescribed residency requirements – last departed Australia as a permanent resident visa holder in 1978 – compelling reasons for the absence – substantial business, cultural, employment or personal ties – personal ties – daughter and her family residing in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65

Migration Regulations 1994 (Cth), Schedule 2, cl 155.212

CASES
Lorenzo 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 7 June 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 22 March 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).

3. 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 had substantial business, cultural, employment or personal ties with Australia or that there were compelling reasons for her absence from Australia.

   Background

4. The applicant is a citizen of the United Kingdom and is currently 82 years old. She first entered Australia in 1959 and worked as a teacher in Australia from 1960 until 1978. She continues to receive a pension as a result of her employment in Australia. She married her husband, who was a citizen of the United Kingdom, in Australia in 1961 and they had a daughter, Dianne, who was born in 1969 and is an Australian citizen.

5. The applicant returned to live in the United Kingdom with her husband and daughter in 1978 due to her parents and her husband’s parents’ ill-health. Her husband was diagnosed with suffering lung cancer in 1982 and died in 1985. As she was supporting her daughter, she remained living in the United Kingdom obtaining support from her family there.

6. The applicant’s daughter is married and has four children. She has lived primarily in Australia since 2012. The applicant’s daughter had been diagnosed as suffering from breast cancer and due to the treatment she is receiving has been advised against any long-distance air travel.

7. The applicant’s movement records show that she has visited Australia on Tourist visas at the following times:

   ·From 29 October 2000 13 December 2000;

   ·From 26 February 2011 to 13 April 2011;

   ·From 6 May 2013 to 8 June 2013;

   ·From 4 December 2013 to 2 March 2014;

   ·From 8 September 2015 to 3 November 2015;

   ·From 8 December 2016 to 20 January 2017; and

   ·From 24 February 2018 to 19 April 2018.

8. The applicant arrived in Australia on 1 February 2019 on a Visitor visa with her daughter who had travelled to the United Kingdom on 10 January 2019. She then applied for the Subclass 155 Resident Return visa.

9. The delegate who considered the application noted that as the applicant was present in Australia at the time of the application she was seeking to meet the criteria in cl.155.212(3A). The delegate noted the following:

   ·The applicant last departed Australia as a permanent resident visa holder on 19 July 1978 before returning on a Visitor visa in 2000, some 22 years later;

   ·Although the applicant’s daughter and her family are residing in Australia, her daughter is not dependent upon the applicant and the applicant is not dependent upon her daughter;

   ·Although the applicant has personal ties in Australia, they cannot be considered substantial;

   ·There was no overall benefit to the Australian community that arises from any ties the applicant may have with Australia; and

   ·The reasons the applicant remained out of Australia were general life matters and cannot be considered compelling.

10. Based on these findings, the delegate was not satisfied that the applicant had substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia and was not satisfied there were compelling reasons for the applicant’s absence from Australia. The delegate found the applicant did not meet the criteria in cl.155.212(3A) and any of the other alternative criteria and refused the application.

    Information to the Tribunal

11. The applicant appeared before the Tribunal by video on 4 November 2020 to give evidence and present arguments. The Tribunal also received evidence from the applicant’s daughter.

12. The applicant and her daughter provided the following evidence to the Tribunal:

    ·The applicant met her husband in the United Kingdom, however, he had the right to reside in Australia and so they decided to move to Australia together in 1959;

    ·The applicant worked in Australia for almost 20 years until she and her husband returned to the UK when their daughter was only four years old;

    ·The applicant’s father and father-in-law died soon after they returned to the UK and they then had the responsibility of caring for her mother and mother-in-law;

    ·The applicant had various jobs including being appointed a deputy head of a school and then obtaining work for Barnardos as well as looking after foster children;

    ·Apart from her sister, who is currently in palliative care, and her younger brother she has no other close relatives living in the United Kingdom;

    ·Many of her husband’s relatives live in Australia;

    ·The applicant’s daughter with her husband and four children moved to Australia in 2012;

    ·Although it was discussed at that time, the applicant did not wish to relocate to Australia;

    ·The applicant suffered an injury in 2019 as a result of a motor vehicle accident and there was no one in the United Kingdom who would be able to provide her assistance and so after the applicant’s daughter travelled to the UK, they returned to Australia together;

    ·The applicant is living with her daughter and her family and is supported by her; and

    ·The applicant receives an Australian and UK pension as a result of the previous employment.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

15. In this case, the applicant is seeking to meet cl.155.212(3A). 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?

16. 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 and if she does not meet the residence history, there are compelling reasons for her absence.

    Does the applicant meet the prescribed residency requirements?

17. The Tribunal has first considered whether the applicant meets the criteria in cl.155.212(3A)(b). This 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.

18. 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].

19. The applicant last departed Australia as a permanent visa holder on 19 July 1978. She did not return until 2000, 22 years later, when she returned on a Tourist visa. Since then, excluding her most recent arrival, she returned to Australia on temporary Visitor visas on six occasions remaining for periods of between one to three months. The current application was made after a further 19 years after she first returned to Australia in which the applicant continued to reside in the United Kingdom.

20. Various reasons have been provided for the applicant’s absence from Australia. This has included the fact that her and her husband’s parents were ill and required assistance, her husband’s illness and ultimate passing, the need to care for her daughter and receive assistance from her family and the United Kingdom, and ultimately the need to provide assistance to her daughter in caring for her daughter’s children.

21. Although the Tribunal accepts that throughout the applicant’s life circumstances have arisen which she has been required to take care of, this has been more in the nature of what life is rather than any compelling reason for her absence from Australia. Although the applicant may have felt compelled to return to the United Kingdom at the time her parents and her husband’s parents needed assistance, the compelling nature of her remaining in the United Kingdom is lost the longer the applicant remained living in the United Kingdom.

22. The applicant had other siblings living in the United Kingdom who were able to provide assistance to her parents during any period of infirmity. There is nothing to indicate that her husband’s treatment of cancer would not have been able to been undertaken in Australia if they had any wish to return to Australia. As it was claimed the applicant’s husband had a number of relatives who lived in Australia, the requirement to rely upon relatives to assist in the care of her daughter after the death of her husband would have been able to have been achieved in Australia as it was in the United Kingdom with the assistance of relatives there.

23. As would be expected of anyone, the applicant showed the resilience and drive of a person who wished to get on with their life. She obtained employment and was successful in the work that she was doing. She continued to provide support to other family members, and in particular her daughter, however, in providing that assistance she was not compelled to remain in the United Kingdom. This is particularly so after the applicant’s daughter turned 18 years of age and then married. Certainly, since the applicant’s daughter and her family have been living in Australia since 2012 there is nothing to indicate that there was any compelling reason for the applicant’s absence.

24. The Tribunal has great sympathy for the applicant. It appears that the impetus to apply for the visa was that the applicant suffered injury as a result of the motor vehicle accident and her daughter, who had been living in Australia at that time for seven years, realised that the applicant could not care for herself and there was no one in the United Kingdom who would be able to provide that assistance. It was only then that the applicant decided that she should return to live in Australia where she could get the assistance of her daughter and her daughter’s family. It was this incident that led to the application being made and not due to the fact that the applicant had been absent from Australia for any compelling reason.

25. Although the Tribunal does have sympathy for the applicant and her family, the Tribunal is not satisfied that there are compelling reasons for the applicant’s absence from Australia since the date of the grant of the applicant’s most recent permanent visa. Accordingly, the Tribunal finds the applicant does not meet the criteria in cl.155.212(3)(b).

26. The Tribunal notes the personal ties the applicant has in Australia. This is with her daughter who is now providing her care. The Tribunal notes the dependence the applicant now has on her daughter in light of the applicant’s age, however, as the Tribunal has concluded that the applicant does not meet the criteria in cl.155.212(3)(b) it is not necessary to consider whether the applicant has substantial personal ties with Australia which are of benefit to Australia as required in cl.155.212(3A)(a).

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

28. For the reasons above, the Tribunal finds the visa applicant does not meet the criteria for the grant of a Subclass 155 visa. No claims have been made that the applicant meets any alternative criteria.

    DECISION

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

    Hugh Sanderson
    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.