Bu (Migration)

[2023] AATA 2354

Bu (Migration) [2023] AATA 2354 (27 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tiansiliang Bu

REPRESENTATIVE:  Mr Feng Lin (MARN: 0958829)

CASE NUMBER:  2015870

HOME AFFAIRS REFERENCE(S):          BCC2019/3770682

MEMBER:Wan Shum

DATE:27 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 887 visa:

·cl 887.212 of Schedule 2 to the Regulations.

Statement made on 27 June 2023 at 12:26pm

CATCHWORDS

MIGRATION – Skilled (Residence) (Class VB) visa Subclass 887 visa – specified regional area – multiple short periods of time overseas – applicant lived in a specified regional area for a total of 2 years while she held a Subclass 489 visa – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, cl 887.212

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 13 October 2020 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 July 2019. Visa Class VB contains Subclass 887, the criteria for which are set out in Part 887 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy cl 887.212 of Schedule 2 to the Regulations. The reason was that there was insufficient evidence to show that the applicant had lived for at least 2 years within the qualifying period in a specified regional area of Australia.

4. The applicant sought review of that decision and was represented in relation to the review by the abovenamed registered migration agent. Mr J P Lessing, barrister, appeared as counsel for the applicant.

5. The applicants, other than the fourth named applicant, appeared before the Tribunal in person on 25 May 2023 to give evidence and present arguments by videoconference using Microsoft Teams. The Tribunal also received oral evidence from Mr Shuangli Biao, the former husband of her relative, by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Her representative and Mr Lessing were present throughout, from a different location.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether, at the time of the visa application, the applicant had lived in a specified regional area for a total of at least 2 years as the holder of one or more specified visas: cl 887.212. ‘Specified regional area’ is defined by cl 887.111 and varies depending on which visa an applicant has relied on in applying for the Subclass 887 visa. It refers to a part of Australia that at the time that visa was first granted, was specified by the Minister in the relevant written instrument.

8. The applicant was granted a Skilled — Regional Sponsored (Provisional) (Class) visa on 31 July 2015 which was valid for 4 years. Visa class SP contained Subclass 489 and the visa was subject to condition 8539.

9. This means that the definition under cl 887.111(3) applies, and the specified regional area would be ‘a part of Australia that, at the time at which a visa of that kind was first granted to the applicant, was specified by the Minister in an instrument in writing under item 6A1001 of Schedule 6A or item 6D101 of Schedule 6D.’ The relevant instrument is therefore IMMI 12/015.

10. The applicant entered Australia on 8 October 2015 and lodged the application for the visa the subject of this review on 30 July 2019. The Subclass 489 visa ceased on 31 July 2019. The applicant claims to have lived in a specified regional area of Australia. She needs to have lived for at least 2 years in such an area between 8 October 2015, when she entered Australia as the holder of a Subclass 489 visa, to 30 July 2019, when the Class VB visa application was lodged.

11. The applicant gave her current residential address on the visa application form as 13 Hanover Place, Strathfieldsaye VIC 3551. The following details of Australian residences were entered on the visa application form:

    Date from   10 AUG 2017
    Date to   30 JUL 2019
    Address   13 HANOVER PLACE
    Suburb/Town   STRATHFIELDSAYE
    Australian State or Territory       Victoria
    Postcode   3551

    Date from   19 MAY 2016
    Date to   23 DEC 2016
    Address   8 DOUBLIN DRIVE
    Suburb/Town   GEELONG
    Australian State or Territory       Victoria
    Postcode   3220

12. The postcodes of 3220 and 3551 in Victoria are specified regional areas.

13. The applicant travelled in and out of Australia multiple times while holding the provisional Subclass 489 visa. It was submitted that the applicant lived at 8 Dublin Drive, Geelong between May 2016 and December 2016 other than the periods she spent in China. Departmental movement records reflect that during this period she was in Australia from 20 May 2016 until 5 June 2016, 13 June 2016 until 28 July 2016, then returned on 10 December 2016 before departing again on 23 December 2016. She did not return to Australia until 10 August 2017, and as indicated above, claimed that she commenced living at 13 Hanover Place, Strathfieldsaye on that day, but subsequently claimed she began residing there from 11 August 2017. Other records held by the Department reflect that the applicant provided the contact address of 30 Lakeside Drive, Point Cook, VIC 3030 on at least six (6) incoming passenger cards completed upon entry into Australia in the period 8 October 2015 to 17 November 2017.  The postcode of 3030 in Victoria is not a specified regional area.

14. The delegate did not consider that there was sufficient information to support her claims to have lived in the specified regional area for a total of 2 years and refused to grant the visa.

15. The use of the Point Cook address, which is not a specified regional area, raises a query as to whether she had been living there and not at Geelong or Strathfieldsaye as claimed.

16. On review, the applicant provided additional evidence to support her claims to have resided at 8 Dublin Drive, Geelong VIC 3220 and then 13 Hanover Place, Strathfieldsaye VIC 3551 while holding the provisional visa. This included statutory declarations, statements, evidence of Mr Biao’s ownership of the Point Cook address and of Mr Yang Liu’s ownership of the Strathfieldsaye property, and various documents addressed to the applicant at Strathfieldsaye relating to her car as well as written and oral evidence from Mr Biao.

17. In respect of the address giving upon entry to Australia by the applicant, the claim is that Mr Biao was married at the time to the applicant’s familial relative, and the applicant gave evidence that she had stayed with them for a few days when she first arrived in Australia. She claims that she did not stay with them at any other time, and Mr Biao also gave evidence that this was the case during the hearing.

18. The Tribunal asked the applicant why she had repeatedly written the Point Cook address of Mr Biao on her passenger cards and the applicant essentially claimed that it was because she believed it was important to give a permanent address. She said she was concerned that living in a shared address and moving around would mean it would be difficult to contact her. Interestingly, the Tribunal notes that the applicant continued to use the Point Cook address after Mr Biao was no longer living at that address, having put the property on the market in 2017. There is no suggestion or any evidence which would support a conclusion that the applicant had been living at that address after Mr Biao had vacated the property, so the address does appear to have been used by the applicant only as a contact address even though it was not her contact address. While this matter of itself is potentially a matter of concern to the Department, the Tribunal is considering whether her claims to have lived in a ‘specified regional area’ for the requisite period are made out and has focused on determining this issue.

19. The Tribunal finds that there is evidence which supports the applicant’s claim to have resided, when in Australia, at 8 Dublin Drive, Geelong VIC 3220. The submissions are that she resided there between the months of May to 23 December 2016 except for periods of time overseas, so essentially for a period of 74 days. However, the person with whom she claims to have resided at this address in share accommodation, Mr Sida Xing, specified in his statement that the applicant lived there from May to October 2016. As he is the contact person for the advertisement upon which she claims to have found this accommodation and states that he himself lived at that address from April 2016 to July 2017, the Tribunal is of the view that it cannot be said that she did reside at the address after October 2016. As she was not in Australia for much of 2016, having departed Australia on 28 July 2016 after entering in May 2016 (with a short period of around 1 week offshore in June 2016), the Tribunal finds that she resided there from 20 May 2016 until 28 July 2016, which is around 2 months.

20. In terms of the second address, while the applicant claims that she had begun living at 13 Hanover Place, Strathfieldsaye VIC 3551 from 10 or 11 August 2017, she used the Geelong address for vehicle registration documents when purchasing a car on 28 August 2017. She claims that this was because she had difficultly remembering her new address at Hanover Place in Strathfieldsaye. The Tribunal does not consider that the applicant was residing at the Geelong address in August 2017, noting the above statement from Mr Xing and that the motor vehicle insurance policy documents issued by Consolidated Insurance Agencies commencing 30 August 2017 reflects that she gave her address as Hanover Place in Strathfieldsaye on or around that date. As to when she commenced residing at Hanover Place in Strathfieldsaye, the rental agreement between Mr Yang Liu, the claimed owner of Hanover Place, and the applicant was signed by Mr Liu on 26 July 2017, and by the applicant on 10 August 2017. As the agreement was signed by Mr Liu prior to the applicant returning to Australia and then countersigned by the applicant on 10 August 2017 when she is recorded as having returned at 9:21:19 pm on that date having been overseas for nearly 9 months at the time, the Tribunal has doubts about its reliability as to the date she commenced living at this address.

21. Given the use of two different addresses and concerns about the date the lease commenced of a room at 13 Hanover Place, Strathfieldsaye, the Tribunal is not prepared to accept that she commenced living at that address on 10 August 2017 as claimed on the visa application form. The Tribunal has formed the view that she began living there on or around 30 August 2017, shortly after the car was purchased (28 August 2017) and motor vehicle insurance was purchased. In terms of whether the entire period from 30 August 2017 until 30 July 2017 can be counted, the Tribunal notes that there were multiple periods of time spent outside Australia, however these were for shorter periods of up to 3 weeks at a time, totalling to around 6 weeks. The Tribunal is of the view that overall, this is consistent with living at the second address in Australia for a total period of 1 year and 11 months, from 30 August 2017 up until the application was made, with multiple short periods of time overseas.

22. In adding the two periods of time living in Geelong and Strathfieldsaye, the Tribunal has calculated a total of 2 years and 1 month living in these postcodes.

23. While the repeated use of a residential address on the incoming passenger cards at which the applicant could not be contacted is somewhat perplexing, having regard to all the information before the Tribunal, it accepts that the applicant resided at 8 Dublin Drive, Geelong VIC 3220 from May to July 2016 and then 13 Hanover Place, Strathfieldsaye VIC 3551 from 30 August 2017 to 30 July 2019. The Tribunal has been provided with additional information to demonstrate that the applicant did live in a specified regional area for at least 2 years at the time of application for the Subclass 887 visa.

24. The Tribunal therefore finds that applicant lived in a specified regional area for a total of 2 years while she held a Subclass 489 visa, which is one of the visas listed in cl 887.212.

25. The Tribunal finds that the applicant satisfies cl 887.212.

26. The submissions also address cl 887.213. However, as this is not the issue in dispute, the Tribunal has not made any findings on whether the applicant worked for the requisite period in a specified regional area.

27. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

28. The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 887 visa:

    ·cl 887.212 of Schedule 2 to the Regulations.

    Wan Shum
    Member