Choi (Migration)

[2021] AATA 289

Choi (Migration) [2021] AATA 289 (6 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Wah Keung Choi

VISA APPLICANT:  Ms Hok Lee Yu

CASE NUMBER:  1902404

HOME AFFAIRS REFERENCE(S):          BCC2018/2816481

MEMBER:Kira Raif

DATE:6 January 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.

Statement made on 06 January 2021 at 4:26pm

CATCHWORDS

MIGRATION – Return (Residence) (Class BB) visa – no substantial ties to Australia –
spouse and children hold Australian citizenship – not resided nor visited Australia for over fifteen years – no evidence of practical steps to relocate – preference for children to complete primary schooling in Hong Kong – no assets in Australia – no demonstrated connection or links to Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 November 2018 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 27 July 2018. 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 the applicant had substantial ties to Australia. The Australian relative (the visa applicant’s spouse and the review applicant in these proceedings) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 6 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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).

5. 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.

6. In this case, the applicant is seeking to meet cl.155.212(3). Subclause 155.212(3) 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.

7. 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.

   The requirements of cl. 155.212

8. The visa applicant’s immigration history is set out in the primary decision record and was confirmed by the visa applicant and review applicant in oral evidence to the Tribunal. Essentially, the review applicant’s evidence to the Tribunal is that he has not travelled to Australia since December 2005 and the visa applicant has not travelled to Australia since December 2003 while their children had never been to Australia.

9. The Tribunal is not satisfied the visa applicant was lawfully present in Australia for a period of, or periods that total, not less than 2 years in the period of 5 years immediately before the application for the visa. The applicant does not meet cl. 155.212(2).

10. As the visa applicant was outside Australia at the time of application, the applicant cannot meet cl.155.212(3A). 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). The visa applicant is seeking to meet cl.155.212(3).

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

11. Subclause 155.212(3) 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.

12. The primary decision record indicates that the visa applicant’s spouse and three children are Australian citizens. Evidence of their Australian citizenship has been provided with the primary application and to the Tribunal. However, the review applicant’s evidence to the Tribunal is that he migrated to Australia in 2002 as a permanent resident and left Australia in December 2005 and has not visited Australia since. The review applicant told the Tribunal that the children had never been to Australia. That is, despite being Australian citizens, the visa applicant’s husband has spent no time in Australia for 15 years and the children had not spent any time in Australia.

13. In the Tribunal’s view, the mere fact that one holds Australian citizenship is not sufficient to establish that close family members have substantial ties to Australia which are of benefit to Australia. There must be a practical link to this country, not one that only exists on paper by virtue of a citizenship grant to a related family member. As the visa applicant’s partner and children have not resided in, nor visited Australia for over fifteen years (and the children have never been to Australia), the Tribunal is not satisfied they have demonstrated any connection or links to Australia. The Tribunal acknowledges the family’s expressed intention to live in Australia, however there is no evidence that any practical steps had been taken to do so. The review applicant’s evidence is that the children continue their schooling in Hong Kong and the visa applicant told the Tribunal that her preference is for the children to complete primary schooling in Hong Kong. The family have no assets in Australia. They operate a bank account at HSBC but all the transactions appear to take place in Hong Kong. Thus, while the review applicant and the three children are Australian citizens, the Tribunal is not satisfied they have demonstrated any links to Australia, nor taken adequate steps to establish and maintain a connection to Australia. The Tribunal is not satisfied that in such circumstances, the Australian citizenship status of the visa applicant’s immediate family evidences the visa applicant’s substantial ties with Australia that are of benefit to Australia.

14. The Tribunal has formed the view that in the particular circumstances of this case, the review applicant’s and the children’s Australian citizenship status is not sufficient to establish substantial ties with Australia which are of benefit to Australia. 

15. The review applicant told the Tribunal that the visa applicant has a cousin in Australia and they have many close friends in Australia, including friends from church. The Tribunal is prepared to accept that evidence. There is little evidence of their contact or the nature of their communication. There is no evidence of personal visits. While the Tribunal accepts that there are some family links and personal friends, the Tribunal is not satisfied that the presence of a cousin and friends constitutes ‘substantial’ ties with Australia.

16. The visa applicant has also provided to the Tribunal evidence of her past study in Australia. The Tribunal accepts that the visa applicant had undertaken study and accepts that during her past residence in Australia the visa applicant had some ties to Australia. However, the Tribunal is not satisfied that past activities constitute substantial ties at the time of the present application where there is no evidence of ongoing connection (other than operating a bank account) or engagement in any activities in Australia.

17. The review applicant and the visa applicant spoke about the visa applicant’s employment and her ability to find employment in Australia. The Tribunal accepts that the visa applicant may be able to find employment in the future. It is not suggested the visa applicant has employment or an offer of in Australia, it is merely the possibility of future employment to which the parties refer. The Tribunal is not satisfied that future employment prospects or the mere possibility of future employment constitute substantial employment ties that exist at the time when the application was made.

18. The review applicant states that they have an account at HSBC to which they deposit money. The Tribunal accepts the family has an account at HSBC, which is operated in Hong Kong. While the account may have been opened in Australia, it appears to be used entirely in Hong Kong. There is no evidence of the funds being used for any activities in Australia and the review applicant confirmed that the family have no assets in Australia. In such circumstances, the Tribunal is not satisfied the existence of a bank account constitutes a close tie with Australia. 

19. The review applicant also states that the visa applicant can bring benefit to Australia and he provided evidence of his wife’s study and employment.  The review applicant refers to his own employment which he claims can also benefit Australia and the parties refer to the assets that the family can bring with them, including financial savings. The Tribunal accepts that evidence. The review applicant provided a number of documents to the Tribunal, including evidence of his partner’s qualifications, testimonials from her employers, personal references and other materials and the Tribunal acknowledges that evidence.

20. The review applicant told the Tribunal that  they were given incorrect advice, on which they relied, that they could renew the permanent visa at any time. The Tribunal acknowledges that the visa applicant may have been given incorrect advice but the Tribunal has no discretion to recommend the visa grant unless it is satisfied that the statutory requirements are met.

21. Having considered the totality of the visa applicant’s circumstances singularly and cumulatively,  the Tribunal is not satisfied on the evidence before it that the visa applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia. The Tribunal is not satisfied the visa applicant meets cl. 155.212(3) and cl. 155.212.

22. Having made that finding, it is not necessary for the Tribunal to consider whether the visa applicant meets the prescribed residency requirements.

23. The Tribunal has also considered whether the applicant meets the requirements for the grant of the Subclass 157 visa. Clause 157.212(2)(a) requires the applicant to have been lawfully present in Australia for a period of, or periods that total, not less than 1 day in the period of 5 years immediately before the application for the visa. The review applicant’s evidence to the Tribunal is that the visa applicant left Australia in 2003 and has not travelled to Australia since that time. The Tribunal is not satisfied the visa applicant had been lawfully present in Australia for a period of, or periods that total not less than 1 day but less than 2 years in the period of 5 years immediately before the application for the visa. The visa applicant does not meet cl. 157.212(2). There is no evidence that the visa applicant is a member of the family unit of a person who has been granted the subclass 157 visa or meets the requirements of subclause 157.212(2). The Tribunal is not satisfied the visa applicant meets cl. 157.212(3) and cl. 157.212.

    Conclusion

24. For the reasons above, the Tribunal finds the visa applicant does not meet the criteria for the grant of a Subclass 155 visa.

    DECISION

25. The Tribunal affirms the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.

    Kira Raif
    Senior Member