Chai (Migration)

[2021] AATA 1244

Chai (Migration) [2021] AATA 1244 (2 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Su Sie Chai

VISA APPLICANT:  Mr Su Hiung Chai

CASE NUMBER:  1912982

HOME AFFAIRS REFERENCE(S):          ICLD2019/34137232 IRIS19147860501

MEMBER:Nicole Burns

DATE:2 February 2021

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 02 February 2021 at 10:47am

CATCHWORDS

MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – lawful presence in Australia for the required period – substantial beneficial ties with Australia – personal ties – family members – Australian-citizen children – enriching the lives of Australian citizen/permanent resident relatives – imminent plans to return to Australia – personal assets in Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 155.212

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 28 March 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 15 January 2019. At the time of application, Class BB contained 2 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). 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 applicant had not been lawfully present in Australia for a total of not less than 2 years in the period of 5 years immediately before the visa application, and because the delegate was not satisfied the applicant had substantial business, culture, employment or personal ties with Australia. 

4. The review applicant and visa applicant (who are siblings) gave oral evidence to the Tribunal via teleconference on 15 December 2020 about the issues in the case: the visa applicant from Sarawak, Malaysia where he resides with his wife and son, and the review applicant from Perth, Western Australia where she resides. The Tribunal also received oral evidence from the visa applicant’s wife (Ms Chui Hua Hwong) and their daughter (Ms Xing Rong Chai (‘Anabel’)). Ms Hwong’s Subclass 155 visa application, made at the same time as the visa applicant lodged his application, was also refused and is the subject of a separate review, constituted to the same Member[1].  These matters were heard as a combined hearing. 

   [1] AAT No. 1912983.

5. The review applicant was represented in relation to the review by her registered migration agent.  He participated in the hearing.

6. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant meets cl.155.212.  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.

9. Subclause 155.212(2) is met if the applicant was lawfully present in Australia for a total of not less than 2 years in the period of 5 years immediately before the visa application and, during that time:

   ·was an Australian citizen or the holder of a permanent visa or permanent entry permit; and

   ·was not the holder of certain specified visas.

10. In this case the delegate in the decision record indicated that the visa applicant was present in Australia for a total of 134 days as the holder of a permanent resident visa in the 5 years immediately before the visa application was lodged.  The review applicant did not dispute this at hearing.  As 134 days is less than 730 days (2 years) in the period of 5 years immediately before the visa application, the applicant does not meet cl.155.212(2).

11. As the visa applicant was outside Australia at the time of application, the applicant cannot meet cl.155.212(3A).

12. As there is no evidence that the visa applicant is a member of the family unit of a person who has been granted the Subclass 155 visa or who meets the requirements of cl.155.212(2), (3) or (3A) the visa applicant does not meet cl.155.212(4).

13. The visa applicant is seeking to meet cl.155.212(3), as extracted in the attachment to this decision.  This 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.  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.

14. The delegate was not satisfied the applicant had demonstrated substantial business, cultural, or employment ties of benefit to Australia.  The delegate accepted the applicant had some personal ties to Australia including several family members who are long term residents here, but overall was not satisfied such ties were of ‘substantial benefit to Australia’.  The delegate appeared to place weight on the fact the applicant, his wife and children[2] spend most of their time outside Australia, visiting for short term visits only.

    [2] In the decision record the delegate erroneously refers to the visa applicant having 2 (Australian citizen) daughters, however the visa applicant clarified to the Tribunal that he has a son and a daughter.

15. On review, the applicants and representative contend that the visa applicant has substantial personal ties to Australia that are of benefit to Australia in the form of family members, extended relatives, and reasonably imminent plans to move permanently here, discussed in more detail below.

16. At hearing the visa applicant explained his background (including immigration history in Australia), business and personal circumstances, and future plans.  He said he was born in Malaysia and migrated to Australia with his parents in 1985, when he was around 15.  He completed high school and university here. He returned to Malaysia in around 1993/94 to help manage the family business (a company that sells marine coating and materials), which he continues to manage.  He lives with his wife in Sarawak and 11-year-old son (Ming Heng Chai, ‘Edwin’).  His daughter (Anabel) is 16 and from early 2020 has lived in Perth with her aunt (the review applicant), her uncle and cousin (who is 13) whilst studying year 10 at high school.   The idea is for Anabel to finish high school in Australia, and possibly attend university here.  Edwin will also study in Australia: initially the plan was to send him in 2021 or 2022 but these plans are a bit uncertain given COVID-19.  When Edwin does go to Australia to study, the plan is for his mother to accompany him: they will all stay with the review applicant.  The review applicant said Edwin will attend the same school as his sister, located near where they live.

17. The visa applicant said he and his wife plan to retire in Perth, at some stage in the foreseeable future.  He still needs to work at the moment but hopes to spend more and more time in Perth, particularly when his wife and son move here, joining his daughter.  His uncle can help manage the business whilst he is away from Malaysia. 

18. The visa applicant said he and his wife (through the Chai Family Trust) own 2 properties in Perth: a residential and commercial property.  His mother and sister live in the residential property.  The review applicant told the Tribunal when her brother moves more permanently here, he plans to buy another house near his children’s school.

19. The visa applicant said since he left Australia around 30 years ago, he has visited most years (at least), often staying with his mother and his elder sister.  He has 2 other sisters in Australia, one of whom has 2 children.  He explained that of his 4 sisters who reside in Australia, the second and third sisters are citizens whilst the eldest and youngest are permanent residents.  Other relatives in Australia include a paternal uncle and his 4 children (3 live in Perth, and one in Sydney), and 3 nieces/nephews (and their children) in Melbourne.  In Sarawak he has an uncle and aunt as well as his wife’s relatives.

20. The visa applicant said all of his immediate family – 4 sisters and mother – reside in Australia, as does his daughter currently.  His children were born here, he owns property and a holding company here, and hopes to retire in Australia.

21. The review applicant submitted that their whole family (apart from the visa applicant) are in Australia; eventually – in the next couple of years – her brother and his wife will move here; Anabel and Edwin love Australia and are likely to marry and start a family here; and their future is in Australia, not Malaysia.  Regarding the potential benefit to Australia, the review applicant argued that Anabel and Edwin are likely to stay in Australia and continue their studies, get jobs and contribute to the Australian economy (including as taxpayers) and culture.   

22. Anabel told the Tribunal she hopes she can be reunited with her parents next year (2021); that she is thinking of living in Australia permanently given there are more opportunities; and that she wants to study veterinary sciences at Murdoch University. 

23. The representative submitted that the visa applicant’s family ties to Australia are substantial and the intention is for their family to be reunited in Australia in the near future. 

    Does the applicant have substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia?

24. The Tribunal accepts the visa applicant’s evidence about his background, family composition, his and his family’s immigration history and current status, and their future plans including spending more time in Australia.  It accepts whilst presently he, his wife and son live in Sarawak where he runs the family business, they visit Australia regularly and hope to retire here in the future.  In the more immediate future, the visa applicant and his wife plan to send their son to attend high school here, joining his older sister.  Evidence of payment of Anabel’s school fees[3] has been provided.  The Tribunal also accepts their children were born in Australia and are Australian citizens based on the provision of their birth certificates, and Australian passports.   

    [3] To Applecross Senior High School.

25. The Tribunal notes that given Anabel did not move to Australia to study until January 2020, after the visa application was lodged on 15 January 2019, it is unable to take her circumstances into account (specifically her current residency and studies in Australia)  when determining whether or not the applicant had substantial personal ties with Australia that are of benefit to Australia at the time of application.  Nonetheless, it accepts she has been living and attending high school in Australia since early 2020 and plans to complete high school here, and possibly attend university and find work here.  The Tribunal accepts the visa applicant and his wife’s presence in Australia to help support her (and her brother) complete their studies, and do so largely as a family unit, would be of benefit to Australia.

26. Additionally, the Tribunal accepts the applicant’s mother and all his siblings (4 sisters) live in Australia, have done so for decades, and are either permanent residents or Australian citizens.  The Tribunal accepts he has several nieces, nephews, cousins and an uncle in Australia.  The Tribunal accepts the visa applicant (and his children) are close to their Australian relatives, maintaining contact and regularly visiting them over the years and that they are integral to their future plans, which includes their children studying high school and university in Australia, and the visa applicant and his wife retiring here.  At hearing the visa applicant and his wife spoke about their closeness to the visa applicant’s relatives in Australia, echoed by the review applicant in her oral evidence.  Based on this evidence, the Tribunal accepts the visa applicant’s ties enrich the lives of his Australian citizen/permanent resident relatives in Australia including his mother, 4 sisters, their children, and extended family members who reside here.

27. Departmental guidelines[4] provide examples of circumstances that the Department considers may indicate personal ties with Australia, including where the applicant has a history of long term residence in Australia prior to the last 5 years, particularly, if the applicant has spent their formative years in Australia, or has spent a significant amount of time in Australia since first being granted a permanent visa.   

    [4] Policy - Migration Regulations - Schedules - Sch2 RRV - Resident return visas - BB 155 - Five Year Resident Return - Substantial ties of benefit to Australia - Substantial personal ties of benefit to Australia (re-issue date 18/4/2017).

28. In this case the Tribunal accepts the applicant lived in Australia for a period of almost 10 years, during which he completed high school and a university degree.  It accepts his evidence to the Tribunal that he was in his mid-to-late teens and early twenties, which include formative years, and that he established a connection with Australia, including close friendships, and only returned to Malaysia due to the obligation of being the only son in the family to manage the family business.  The Tribunal accepts the applicant has been a participating member of the Australian community and economy in the past, and his ties enrich the lives of individual Australian residents and citizens.  

29. Further examples of a person’s substantial personal ties to Australia described in Departmental guidelines include where a person has been living overseas with their family unit, including Australian partners and minor children, and the applicant provides evidence of imminent plans to return to Australia with their family to live.  In this case although the visa applicant’s wife is not an Australian citizen, his children are and the Tribunal accepts his evidence that his daughter has relocated to Australia to study at the start of 2020 and his son will follow shortly, as well as his wife to undertake secondary studies here. 

30. Departmental guidelines also discuss how personal assets in Australia, such as a family home or single investment property may constitute a personal tie with Australia.  The Tribunal accepts the applicant owns 2 properties in Perth – a residential property where his mother and sister reside – and a commercial property which he leases.  Copies of financial documents[5] pertaining to the Chai Family Trust were provided to the Department and Tribunal showing the main activity as residential and commercial properties (as at the end of June 2017).  It accepts the review applicant’s evidence that her brother will buy a house near his children’s high school in the future, although there is no evidence of any concrete plans at this stage. 

    [5] For example, balance sheets, assets distribution schedule, depreciation schedule, tax related documents.

31. Considering the above factors, the Tribunal is satisfied that the applicant has substantial personal ties with Australia that are of benefit to Australia. 

32. The Tribunal notes the existence of the applicant’s ongoing strong business ties to Malaysia, evidenced by the fact that he continues to spend a lot of time there, as well as the fact the majority of his wife’s relatives live there.  However, as is recognised in the Departmental policy guidelines (PAM3), the Regulations do not require that an applicant has personal ties with Australia that outweigh his or her personal ties with any other country.  The Regulations require only that the applicant has substantial personal ties with Australia which are of benefit to Australia. 

33. Accordingly, the Tribunal is satisfied that at the time of application the applicant had substantial personal ties with Australia that are of benefit to Australia. Therefore, the applicant meets cl.155.212(3)(a).

34. 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).

35. Departmental records indicate that the visa applicant last left Australia (prior to the lodgement of the Subclass 155 visa application) on 29 December 2018 as the holder of a permanent visa - a Class BB (Subclass 155) visa - which had not ceased.  The Tribunal is therefore satisfied that at the time of application the visa applicant had last left Australia as a permanent resident and has not been continuously absent from Australia for 5 years or more immediately before the visa application.  Accordingly, the applicant meets cl.155.212(3)(b) and cl.155.212.

    CONCLUSION

36. 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

37. 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.

    Nicole Burns
    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.