Callan (Migration)

Callan (Migration) [2023] AATA 4147 (5 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr James Joseph Callan
CASE NUMBER:  2302286
HOME AFFAIRS REFERENCE(S):          BCC2022/222379

MEMBER:Simone Burford
DATE:5 December 2023
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Resident Return (Class BB) visa.

Statement made on 05 December 2023 at 2:30pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – majority of family settled in Australia – lawfully present in Australia for two years – citizenship or holding a permanent visa or permanent entry permit – substantial business, cultural, employment or personal ties of benefit to Australia – applicant’s children are Australian citizens – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 45, 65
Migration Amendment Regulations 2002 (No 2), s 5(2)
Migration Amendment Regulation 2013
Migration Regulations 1994, Schedule 2, cls 155.211, 155.212, 157.211, 157.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 February 2023 to refuse to grant the visa applicant a Return (Residence) (Class BB) Subclass 155 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 16 June 2022.
The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for the visa.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is an Irish and Canadian dual-national who was born in Ireland in 1952. According to a record submitted by the applicant from the National Archives of Australia he arrived in Perth on 10 June 1974. He told the Tribunal he came with his mother and a brother. Several other siblings were already living in Australia at that time. Several others came after the applicant arrived. The applicant is one of 11 siblings. All but 2 migrated to Australia. Two have since died and are buried in Australia. The applicant’s mother also died in Australia and is buried here.
In 1976 the applicant married Rae Lynn Tomkins, a Canadian citizen. They met in Perth but moved to Bathurst, NSW where the applicant worked as a bricklayer.
They had three children in Australia. All are Australian citizens but now live abroad, in the UK and Canada.
The applicant moved to Canada with his wife and children in 1986 following the applicant’s wife’s mother’s diagnosis with Leukemia. They settled in Calgary where the applicant remains living.
The applicant returned in 1990 when his brother was ill and made several other return visits to Australia while living in Canada. He and his wife separated around 4 ½ years ago.
He applied for the visa on 16 June 2022 from Canada. On 26 January 2023 he travelled to Australia on a UD 601 Electronic Travel Authority visa to visit his family members in Perth. He returned to Canada on 24 April 2023 to visit his family members in Perth. He returned to Canada.
Review
The applicant appeared before the Tribunal on 1 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted via telephone with the applicant appearing from Canada.
The applicant was not represented in relation to the application for the visa or the review. the review.
The applicant provided the following documents in support of the application:
·            Statutory declaration from James Moore dated 20 August 2022;
·            Email from the applicant dated 28 September 2023;
·            Email from the applicant dated 17 October 2023.
In addition, he submitted the following material to the delegate:
·            Copy of the applicant’s Canadian passport issued on 24 April 2014;
·            Copy of the applicant’s Irish passport issued on 15 June 2016;
·Birth certificate for Ann-Marie Conama (DOB 8 December 1975) dated 25 November 1993;
·            Email from Ann-Marie Conama, the applicant’s niece, dated 19 January 2023;
·            Email from applicant dated 17 January 2023;
·            Email from applicant dated 7 December 2022;
·Proof of arrival request to National Archives of Australia dated 7 December 2022;
·            Email from applicant dated 17 February 2023;
·Australian birth certificate Blaise Ellen Callan (DOB 20 January 1987), the applicant’s daughter, dated 27 January 1987;
·Australian birth certificate Jody Louise Callan (DOB 1 February 1977), the applicant’s daughter, dated 4 March 1977;
·Australian marriage certificate for James Callan and Rae Lynn Tomkins dated 1 May 1976;
·Copy of a Resident Return visa for Australia for James Callan issued 27 January 1987 and expiring 27 January 1992.
At the hearing, when the Tribunal asked if there were any other documents the applicant had submitted, he said he had held a Builder’s licence in NSW and that he thought he had submitted a letter from his Member of Parliament (MP) from when he lived in Bathurst. He thought the MP’s name was Fitzsimmons. As discussed at the hearing, the Tribunal was unable to locate this document on the file but accepted it was a character reference evidencing the applicant’s time in NSW and the work he undertook there in the building industry over a number of years.
The Tribunal notes the copy of the applicant’s Resident Return visa was of the visa page from the applicant’s passport. The applicant indicated he thought he had obtained the visa on an earlier issued Irish passport. That passport was not before the Tribunal, however the Tribunal had no reason to consider this was not a genuine copy of the visa.
CRITERIA FOR THE VISA
A Resident Return visa cannot be granted unless the primary criteria specified in the Act and the Migration Regulations (Cth) (the Regulations) are satisfied. There are no secondary criteria for the visa.
The criteria for a Return (Residence) (Class BB) visa are set out in Schedule 2 of the Migration Regulations 1994.
The Return (Residence) (Class BB) visa is for Australian permanent residents and certain former Australian citizens or former Australian permanent residents who are seeking to return to Australia after a period of absence. 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, or who are contributing to Australia's well-being, retain the eligibility to return to Australia as permanent residents. There are two subclasses of Resident Return visas – Subclass 155 (Five Year Resident Return) Subclass 157 (Three month Resident Return). An applicant applies for a class of visa[1] and is entitled to be assessed against each subclass that is included in the class. When assessing an application for a Return (Residence) (Class BB) visa, the applicant is usually first considered against the criteria for a Subclass 155 visa as the more advantageous visa. If the applicant is not eligible for that subclass, they must be considered against the criteria for a Subclass 157 visa.
[1] s 45.
For a Subclass 155 visa an applicant must meet the criteria in cl 155.21. Clause 155.211 Requires that the applicant is an Australian permanent resident, former Australian citizen or former Australian permanent resident (whose most recent permanent visa was not cancelled). As the applicant held a Resident Return visa which was granted in 1987 and which was not cancelled he satisfies cl 155.211.
At time of application, an applicant for a Subclass 155 visa must also meet one of four alternative requirements set out in cl 155.212 (subclauses (2), (3), (3A) or (4)). These relate to:
· physical residence in Australia (subclause (2))
·substantial ties with Australia (subclause (3) for an applicant outside Australia and subclause (3A) for an applicant in Australia)
·being a member of a family unit of a Subclass 155 holder or someone who meets the requirements of cl 155.212 (subclass (4)).
The issue in this case is whether the applicant satisfies clause 155.212.
The applicant will meet cl 155.212(2) if, at time of application, he or she was:
·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 for the visa; and
·during that time, was the holder of a permanent visa or permanent entry permit or was an Australian citizen and was not the holder of a temporary visa (other than a kind specified and held concurrently with the permanent visa/entry permit), or of a bridging visa.[2]
Unlike some of the alternate criteria in cl 155.212, the applicant may be either in or outside Australia at time of application for this criteria.
[2] cl 155.212(2). For visa applications made on or after 1 July 2002, the applicant may be the holder of 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: Migration Amendment Regulations 2002 (No 2) (Cth) (SR 2002, No 86), s 5(2) and Migration Amendment Regulation 2013 (No 1) (Cth) (SLI 2013, No 32).
The alternate criteria in cls 155.212(3)- (3A) relate to applicants who don’t satisfy the physical presence criteria but have substantial ties with Australia. Under these criteria if an applicant does not meet the physical residence criteria, he or she may still satisfy cl 155.212 based on the nature of their ties to Australia. The requirements differ depending on whether the visa applicant is in or outside Australia at the time of application.
If the applicant is outside Australia at the time of application, the decision maker must be satisfied that the applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia, and the applicant:
·has not been absent from Australia for a continuous period of five years or more immediately before the application for the visa, unless there are compelling reasons for the absence, and holds a permanent visa, or last departed Australia as an Australian permanent resident, or last departed Australia as an Australian citizen, but has subsequently lost or renounced Australian citizenship; or
·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 five 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 application, unless there are compelling reasons for the absence.[3]
[3] cl 155.212(3).
An applicant will alternatively meet cl 155.212 if they are 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 in cl 155.212(2), (3) or (3A) and has lodged a separate application for a Return (Residence) (Class BB) visa.[4]
[4] cl 155.212(4). For visa applications made prior to 1 July 2012, an applicant who is a member of the family unit of a person who meets cl 155.212(2), (3) or (3A) and has lodged either a combined or separate Class BB visa application may satisfy the requirements of cl 155.212(4)(b). Clause 155.212(4)(b) was amended by SLI 2012, No 106 such that for visa applications made on or after 1 July 2012, only an applicant who is a member of the family unit of a person who meets cl 155.212(2), (3) or (3A) and has made a separate Class BB visa application can meet cl 155.212(4)(b).
Subclass 157 visas are intended for permanent residents or former citizens who have less than two years’ physical residence in Australia and have not yet established substantial ties of benefit to Australia.[5]
[5] Policy - Migration Regulations - Schedules - Sch2 RRV - Resident return visas - BB 157 - Three Month Resident Return - About BB 157 - Purpose (re-issue date 18/4/2017).
For a Subclass 157 visa an applicant must meet the criteria in cl 157.21. Clause 157.211 is in the same terms as cl 155.211. As the applicant held a Resident Return visa which was granted in 1987 and which was not cancelled, he satisfies cl 157.211.
At time of application, an applicant for a Subclass 157 visa must also meet one of two alternate requirements in cl 157.212, subclauses (2) and (3).[6] The first requirement relates to physical presence in Australia and reasons for departure and the second to being a member of a family unit of a Subclass 157 visa holder.
[6] cl 157.212(1).
The requirements for physical presence in Australia for a Subclass 157 visa are less stringent than those for the Subclass 155 visa. The focus of the criterion is on the reasons for the applicant’s departure from Australia. To meet this alternate criterion (subclause (2)), the applicant must:
·be lawfully present in Australia for a period of, or periods that total, not less than one day but less than two years in the period of five years immediately before the application for the visa and during that time:
- was the holder of a permanent visa or a permanent entry permit or an Australian citizen; and
- did not hold a temporary visa (other than a kind specified concurrently with the permanent visa/permit), or a bridging visa;[7] and
·either:
- have compelling and compassionate reasons for departing Australia, or
- if outside Australia, had compelling and compassionate reasons for his or her last departure from Australia.[8]
[7] cl 157.212(2)(a). For applications made on or after 1 July 2002, the applicant may be the holder of 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: SR 2002, No 86, and SLI 2013, No 32.
[8] cl 157.212(2)(b).
In the alternative (subclause (3)) they must be the member of the family unit of a person who has been granted a subclass 157 visa or meets the requirements of subclause (2) and has lodged an application for a Resident Return visa.
CONSIDERATION
Applicant’s migration history
As noted above, the applicant first arrived in Australia on 10 June 1974. At that time, he was travelling on an Irish passport.
His mother and the majority of his siblings settled in Australia.
The applicant was granted a Resident Return visa. It appears from the evidence that visa was granted on the applicant’s Irish passport. His evidence was that this was the last permanent visa he held. He confirmed he did not take out Australian citizenship because the family were under significant stress when they left Australia as his wife’s mother was seriously ill. The Tribunal accepts this evidence.
The applicant moved to Canada with his wife and children in 1986. His return visits after that date appear to have been made on his Canadian passport.
He told the Tribunal he returned around 1990 when his brother was ill and later passed away. The Tribunal accepts this is the case. According to available travel records (which only date back to the early 1990’s) he also returned to Australia in 1992 (16 October 1992 to 11 November 1992), 2007 (20 April 2007 to 25 May 2007) and 2011 (13 January 2011 to 13 March 2011). He confirmed all these visits were made on visitor’s visas or electronic travel authorities.
The applicant confirmed he applied for the visa on 16 June 2022 while offshore in Canada. He then travelled to Australia on an electronic travel authority on 26 January 2023 to visit his family members in Perth. He returned to Canada on 24 April 2023.
Analysis and findings
The applicant did not contend that he meets the criteria for a Resident Return visa, though he submitted that he should be granted the visa on compelling or compassionate grounds.
As noted earlier, cl 155.212 provides several alternative criteria which may be met. The first requires that, at the time of application, the applicant was 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 for the visa; and during that time, was the holder of a permanent visa or permanent entry permit or was an Australian citizen and was not the holder of a temporary visa (other than a kind specified and held concurrently with the permanent visa/entry permit), or of a bridging visa.
As the applicant was not lawfully present in Australia for a period or periods totalling not less than two years in the five years prior to making the application he does not meet this criteria. In the five years prior to the application being made the applicant was not lawfully present in Australia. Further, the applicant did not hold a permanent visa or permanent entry permit in the five years prior to the application being made. Nor has he ever been an Australian citizen. Accordingly, he does not meet the criteria in cl 155.212(2) (the physical presence criteria). The applicant accepted this was the case.
In order to meet the alternative criteria in cls 155.212 as the applicant was outside Australia at the time of application subclause (3) applies and the Tribunal must be satisfied that he has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia, and he has not been absent from Australia for a continuous period of five years or more immediately before the application for the visa, unless there are compelling reasons for the absence. In addition, he must hold a permanent visa, or have last departed Australia as an Australian permanent resident, or last departed Australia as an Australian citizen, but has subsequently lost or renounced Australian citizenship. The applicant accepted that he did not satisfy these criteria as he did not hold a permanent visa, did not last depart Australia as a permanent resident or Australian citizen.
Further there was no information to suggest the applicant met the alternative criteria for offshore applicants as he was not an Australian citizen, or an Australian permanent resident, less than 10 years before the application. Therefore, he cannot satisfy the criteria notwithstanding there may be compelling reasons for him being absent from Australia for a period of, or periods that total, more than five 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 application.[9]
[9] cl 155.212(3).
Therefore, the applicant does not satisfy cl 155.212(3).
There was no information that any of the applicant’s family members had been granted a Subclass 155 visa that is still in effect, or meets the requirements in cl 155.212(2), (3) or (3A) and has lodged a separate application for a Return (Residence) (Class BB) visa. The applicant confirmed that none of the members of his family unit have applied for such a visa, noting also that the applicant’s three daughters are Australian citizens and he is separated from his wife. Therefore, the applicant does not meet cl 155.212(4)(b).
As clause 155.212 of Schedule 2 of the Regulations is not met by the applicant, he does not meet the criteria for a Subclass 155 visa.
As the applicant did not hold a permanent visa in the five years prior to the application for the visa being made he also does not meet the criteria in cl 157.212 for a Subclass 157 visa.

As cls 155.212 and 157.212 of Schedule 2 of the Regulations is not met by the applicant, The Tribunal finds he does not meet the criteria for a Resident Return (class BB) visa.
Conclusion
The applicant highlighted the circumstances of his departure from Australia to Canada and the fact he regretted not taking out citizenship prior to leaving. He stressed his ties to Australia through his four siblings who live here, family members who are buried here and his daughters who are citizens and plan to return to settle in the future. He detailed his long work history and community involvement in Australia and desire to make a contribution on return including through teaching bricklaying skills to Indigenous youth as he has in Canada and the production of a not-for-profit three-wheeled bicycle.
The Tribunal acknowledges the applicant’s connection to Australia and his desire to settle here. The Tribunal does not doubt the applicant seeks to make a positive contribution in Australia. The Tribunal also acknowledges the difficult circumstances under which he left Australia to resettle in Canada in support of his wife.
However, as discussed with the applicant at the hearing, the applicant does not meet the physical presence criteria or offshore application criteria for the visa in large part due to the period which elapsed since he last held a permanent visa in Australia. As explained to the applicant, the question of whether there are compelling reasons for his absence or compelling or compassionate reasons for his departure do not arise in such circumstances. Further, the question of whether the Tribunal is satisfied that the applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia also does not arise for determination.
As the alternative criteria for an application made for the visa onshore are distinct from the offshore criteria, the Tribunal encouraged the applicant to seek advice from a migration agent or lawyer regarding his visa options.
In any event, the applicant does not meet the criteria for the visa and the decision under review is affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Resident Return (Class BB) visa.
Simone Burford
Senior Member

[2023] AATA 4147

5 December 2023

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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