Chai (Migration)

[2023] AATA 1747

Chai (Migration) [2023] AATA 1747 (9 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sing Hai Chai

VISA APPLICANT:  Mr Sing Ho Chai

REPRESENTATIVE:  Ms Rose Chai (MARN: 0319306)

CASE NUMBER:  2008330

HOME AFFAIRS REFERENCE(S):          BCC2021799337

MEMBER:Margie Bourke

DATE:9 May 2023

PLACE OF DECISION:  Melbourne

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 of Schedule 2 to the Regulations.

Statement made on 09 May 2023 at 2:47pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – substantial ties criterion – substantial personal ties – length of time resided in Australia – two Australian born and Australian citizen children – benefit to Australia – Australian citizen children to undertake their education in Australia – prescribed residency requirements – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 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 12 March 2020 to refuse to grant the visa applicant (the applicant) a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 29 October 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 (Cth) (the Regulations). Relevantly to this case, they include cl 155.212.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.155.212 because the delegate was not satisfied that the applicant satisfied any of the alternative requirements in cl.155.212.

4. The review applicant had also applied for review of the decision by the Department to refuse to grant an application for a subclass 155 visa, in which the applicant was the brother of the visa applicant in this review. The reasons for the refusal in the other application for review was similar to the matters in this review. At the invitation of the Tribunal, the review applicant consented to the two matters been conducted by way of a combined hearing.

5. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. Tribunal had regard to the circumstances of the review applicant, the nature of the review, and the fact the two visa applicants in both reviews would be giving evidence from overseas. The Tribunal was of the view that the conduct of the hearing by video would allow the review applicant the opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing, and allow the Tribunal to properly assess the evidence before it. The review did not involve an extensive amount of documents to be put to the review applicant during the course of the hearing. The hearing was scheduled at a time when the availability of in-person hearings was restricted due to the ongoing pandemic. The Tribunal also considered the applications for review had been lodged in May 2020 and any unnecessary further delay in scheduling the hearing should be avoided. For all the above reasons the review applicant was invited to attend the combined hearing by way of video hearing.

6. The review applicant appeared before the Tribunal by video on 8 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from both visa applicants who attended the hearing by video on separate devices.

7. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing by video.

8. This decision record relates to the visa applicant Mr Sing Ho Chai. A separate decision record has been made in relation to the other visa applicant in the combined hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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. 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(3). The applicant does not claim to meet any of the other subclauses in cl 155.212. As the applicant was lawfully present in Australia for a period in total of 15 days in the period of five years immediately before the application for the visa, and not for a period of not less than two years in the period of five years immediately before the application for the visa, the visa applicant cannot meet  cl.155.212(2). As the applicant was outside Australia at the time of application, the visa applicant cannot meet cl 155.212(3A), which requires the visa applicant is in Australia at the time of application. As the applicant does not claim to be a member of the family unit of a person who has been granted a Subclass 155 visa or meets the requirements of cl155.212(2),(3) or (3A), the visa applicant cannot meet cl.155.212(4).

    Does the applicant meet the substantial ties criterion?

12. 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.

13. 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?

14. The Tribunal is satisfied that the visa applicant arrived in Australia on 16 January 1997, and undertook study and then employment in Australia over a 15 year period until 15 January 2012. During this time the visa applicant departed Australia regularly, and was outside Australia for a total period in excess of four years. However the Tribunal is satisfied that the visa applicant resided in Australia for a significant period of time between 1997 and 2012. The Tribunal is satisfied that the visa applicant has two Australian born and Australian citizen sons, born in 2006 and 2009. Tribunal is satisfied that the boys are now currently aged 16 and 14 years, and the visa applicant intends to return to Australia so his sons can study in Australia and complete their education here.

15. The Tribunal is satisfied that the visa applicant’s brother, the review applicant, Sing Hai Chai, resides permanently in Melbourne with his wife and two young children.

16. The Tribunal is satisfied based on the evidence in the hearing that the visa applicant’s parents, although they are also the current holders of permanent resident Subclass 155 visas, reside substantially in Malaysia. The Tribunal is satisfied that the visa applicant has two cousins who reside in Australia. Tribunal does not consider the evidence of the visa applicant’s parents, who reside substantially in Malaysia, or the cousins of the visa applicant who reside in Australia, amount to substantial personal ties.

17. The Tribunal is satisfied that the length of time the visa applicant resided in Australia between 1997 and 2012, during which time he studied and undertook full-time employment, and the fact the visa applicant has two Australian born and Australian citizen children is sufficient evidence to establish that the visa applicant has substantial personal ties with Australia.

18. The Tribunal is satisfied that the visa applicant wishes for the two children to study in Australia and gave evidence of the benefit of the education system in Australia for the children. The Tribunal is satisfied that the benefit of the Australian citizen children to undertake their education in Australia is a benefit to Australia.

19. Therefore, the Tribunal finds that the visa applicant has substantial personal ties with Australia, which are of benefit to Australia.

20. Accordingly, the Tribunal is satisfied that at the time of application the applicant meets the requirement that he had substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia.

    Does the applicant meet the prescribed residency requirements?

21. In addition to having substantial ties to Australia, cl.155.212(3) requires that the applicant either:

    ·holds a permanent visa or last left Australia as a permanent resident or citizen (but is no longer a citizen), and has not been continuously absent from Australia for 5 years or more immediately before the visa application (unless there are compelling reasons for the absence); or

    ·was an Australian citizen or permanent resident less than 10 years before the application, and has not been absent from Australia for periods totalling more than 5 years since last departing Australia as a citizen or permanent resident (unless there are compelling reasons for the absence).

22. 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].

23. The Tribunal is satisfied that the visa applicant last left Australia as a permanent resident, the holder of a subclass 155 return resident visa. The Tribunal is satisfied that the visa applicant spent 15 days in Australia between 26 November 2017 and 10 December 2017, which was within five years of the time of application which was lodged on 29 October 2019. Therefore, the applicant has not been absent from Australia for a continuous period of five years or more immediately before the application for the visa, at and the applicant last departed Australia as an Australian permanent resident, and the applicant meets the requirements of cl.155.212(3)(a).

24. Further the Tribunal is satisfied that the applicant was the holder of a Subclass 115 visa at the time of application and therefore the applicant was an Australian permanent resident less than 10 years before the application. The Tribune is satisfied that the applicant had 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, which was 10 December 2017, as the holder of the subclass 155 visa to the date of application, which was made on 29 October 2019. Therefore, the visa applicant meets the requirements of cl.155.212(3)(b).

25. Accordingly the Tribunal is satisfied that the visa applicant has substantial personal ties with Australia which are of benefit to Australia and also meets the requirements of cl.155.212(3) (a) or (b).

26. For these reasons, the Tribunal is satisfied that at the time of application, the visa applicant meets the requirements of cl.155.212(3). Therefore, the Tribunal is satisfied that the visa applicant meets the requirements of cl.155.212.

27. 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

28. 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 of Schedule 2 to the Regulations.

    Margie Bourke
    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).

    …

    (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.