Chand (Migration)

[2020] AATA 5931

Chand (Migration) [2020] AATA 5931 (10 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Rosita Renee Chand

VISA APPLICANT:  Mr Parmod Chand

CASE NUMBER:  2006915

HOME AFFAIRS REFERENCE(S):          BCC2020/220454

MEMBER:Nicole Burns

DATE:10 December 2020

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 10 December 2020 at 3:25pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – lawful presence in Australia – wife was granted a Subclass 155 visa – substantial business, culture, employment or personal ties – immediate and extended family members in Australia – strong business and personal ties to Fiji – 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 26 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 (the Act).

2. The applicant applied for the visa on 29 January 2020. 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). Relevantly to this case, they include cl.155.212. 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.

3. The review applicant – who is the visa applicant’s daughter - appeared before the Tribunal via teleconference on 8 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s son, Raymond Chand.   

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

5. 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 review applicant was given a fair opportunity to give evidence and present arguments.

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 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.

8. 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.

9. The delegate in the decision record indicated that the applicant was present in Australia for a total of 278 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 278 days is less than 2 years in the period of 5 years immediately before the visa application, the applicant does not meet cl.155.212(2).

10. Subclause 155.212(4) is met if, at the time of application, the applicant is 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 of 155.212(2), (3) or (3A) (relating to presence in Australia, substantial ties, and absence from Australia) and has lodged a separate application for a Class BB visa.

11. In a statement provided to the Tribunal on review the applicant argues he meets this subclause because his wife (Sapeta) was granted a Subclass 155 visa.  Based on the provision of a copy her Subclass 155 visa grant notice and Departmental records, the Tribunal accepts her Subclass 155 visa was granted on 27 February 2020, which has not ceased (until 27 February 2021).  However, as discussed at hearing, given her visa was granted after the applicant lodged his Subclass 155 visa application on 29 January 2020, the applicant does not meet cl.155.212(4) at the time of application, as required.

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

12. Given these findings, the applicant is seeking to meet subclause 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.

13. In this case the applicant was outside Australia at the time of application.  The delegate was not satisfied the applicant had substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia primarily on the basis of no evidence being provided of such at the visa application stage.

14. On review, the review applicant and representative contend that the applicant has substantial personal ties in the form of several immediate and extended family members in Australia.

15. At hearing the review applicant explained that she, her sister (Leena) and brother (Raymond) have migrated permanently to Australia, are all Australian citizens, have Australian citizen children, and have established their lives here where they plan to stay in the foreseeable future.  The review applicant and Raymond live in Brisbane, both with three children.  Leena lives in Sydney with her husband and one-year old daughter.  She is pregnant with her second child, due in February 2021: their parents hope to be able to spend time with her after the birth, particularly given her husband, a doctor, is often away for work.

16. The review applicant said her father also has several extended family members in Australia – either Australian citizens or permanent residents – including his sole remaining sibling (a brother in Queensland) an elderly uncle, and several nieces, nephews and cousins and their children.  She said he is close and connected to them all, considered a peacemaker and consul to many family members.  She emphasised they are a close-knit family. 

17. The review applicant said her parents reside in Fiji along with her other brother Edwin, and his three children.  Edwin runs the family business – operating buses on one of the islands - – with his father’s help at times.  Edwin’s wife had applied for a skilled regional visa to Australia with Edwin and their children as dependents: however, the application has been put on hold due to COVID-19.  The review applicant told the Tribunal that Edwin and his wife have separated recently and therefore his plans to migrate to Australia on this basis are uncertain.  Nonetheless Edwin’s eldest son – presently aged 17 – plans to undertake university studies in Brisbane from 2022, along with the review applicant’s eldest daughter and Raymond’s eldest son. The review applicant said her nephew will live with her.

18. The review applicant said her father last departed Australia in October 2019 after spending time with his family members in Australia, as he has many times over the years.  He had planned to return to Australia for Christmas that year, however decided not to after Raymond and his family visited Fiji around that time.  Her father then planned to visit Leena in around January 2020 who was living in Moruya (on the south coast of NSW) at the time.  However, his plans were delayed once again, first by the cyclone that hit Fiji (and damaged infrastructure which affected the family’s business) and then by the bushfires which cut off Moruya from other parts of the country.  His visa then expired, before he was able to re-enter Australia. 

19. The review applicant said her mother - who applied for the Subclass 155 visa at the same time as her father – was granted the visa in February 2020.  She had spent more time in Australia in the preceding years than the visa applicant.  This was primarily because although Edwin was operating the business in Fiji, the visa applicant often helped him out.  He was also trying to sell parts of the business.

20. The review applicant said her parents plan to spend more and more time in Australia with their children and grandchildren, hoping to sell more parts of the business and for Edwin to continue to manage other parts of the business whilst he remains in Fiji.  Edwin plans to purchase a house in Brisbane for his parents to reside in.  As noted, the review applicant’s mother is a retired schoolteacher who wants to help Leena with her new child, due early next year, in particular.  Her father, although he will be semi-retired in Australia, also plans to help out his uncle who owns an Ultra tune business in Brisbane.   

21. The Tribunal accepts the evidence before it about the applicant’s family ties to Australia, and his family members’ immigration status here.  Evidence has been provided in the form of copies of the applicant’s children Australian citizen certificates.  It accepts that three of the applicant’s five children[1] reside permanently in Australia, along with his seven (soon to be eight) grandchildren, all of whom are Australian citizens and have established lives here.  It accepts he is close to his family members in Australia and that he and his wife have spent considerable periods of time in Australia in the past with their family members here, and hope to do even more so in the future, as the applicant heads into retirement.  Departmental records show the applicant has made several trips to Australia since he first visited in 1993, increasing in frequency after he was granted a permanent (Contributory parent) visa in 2013, and thereafter two Subclass 155 visas.

    [1] At hearing the review applicant said her other brother lives and works in the United States.

22. The Tribunal also accepts the applicant has several extended family members who reside in Australia (as either permanent residents or Australian citizens) including his brother, nieces and nephews and an elderly uncle whom he is close to.  Additionally, the Tribunal accepts the applicant’s only child who remains in Fiji – Edwin – plans to migrate to Australia eventually, and Edwin’s eldest son plans to study at university in Brisbane along with his cousins, from 2022.  The Tribunal accepts Edwin plans to buy a property shortly in Brisbane where the applicant and his wife will reside. 

23. At hearing the applicant’s daughter and son spoke of their close-knit family – the majority of whom are resident in Australia - and how their parents enhance their and their children’s lives, as well as their future plans of spending more time with their parents, particularly as they get older.  In the immediate future the review applicant said her parents hope to be able to live with her sister, Leena, and support her around the birth of her second child in February next year given she has a young daughter and her husband is away for work a lot, as a doctor.  Leena provided a letter to the Tribunal confirming her situation.  In it she emphasises how close knit their family are, as does her brother Raymond in a letter he provided.  Raymond noted that his eldest son is particularly close to the applicant, who was cared for by his paternal grandparents in the early years of his life in Fiji.   Based on this evidence the Tribunal accepts the applicant’s ties enrich the lives of his Australian citizen children, grandchildren and other relatives here.

24. For reasons above the Tribunal accepts he has substantial family ties to Australia and intends to establish residence in Australia in the near future.

25. The Tribunal notes the existence of the applicant’s ongoing strong business and personal ties to Fiji, evidence by the fact that he continues to spend a lot of time 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. 

26. 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. The applicant meets cl. 155.212(3)(a).

27. 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).

28. Departmental records indicate that the visa applicant last left Australia on 4 October 2019 as the holder of a permanent visa: a Class BB (subclass 155) visa, which ceased on 14 February 2020.  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.  The applicant meets cl.155.212(3)(b) and cl.155.212.

    CONCLUSION

29. 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

30. 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.