Chow (Migration)

[2023] AATA 1955

Chow (Migration) [2023] AATA 1955 (14 June 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Lok To Chow

CASE NUMBER:  2002549

HOME AFFAIRS REFERENCE(S):           BCC2018/2359183

MEMBER:  Meena Sripathy

DATE:  14 June 2023

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 14 June 2023 at 3:51pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – outside Australia when application made – substantial business, cultural, employment or personal ties of benefit to Australia – working in home country with two short visits to Australia since permanent visa granted – COVID restrictions – plans for house purchase, children’s education and business investment – no compelling or compassionate reasons for last departure – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 155.212(3), 157.212

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 20 January 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).

1. The applicant applied for the visa on 1 June 2018. 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.

1. The delegate refused to grant the visa on the basis that the applicant did not meet

   cl 155.212(3) because the delegate was not satisfied the applicant demonstrated sufficient evidence of substantial ties of benefit to Australia.

1. The applicant appeared before the Tribunal by video hearing on 7 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

1. The issue in this case is whether the applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.

1. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Information included in the application form indicates the applicant is a 36 year old, married male born in Hong Kong, and the holder of a Hong Kong SAR passport. He provided an Australian visa grant number and an address in Flinders Park South Australia as his residential and postal address. No further supporting documents were provided with the application.

1. On 20 August 2018 the Department requested the applicant to provide evidence he has substantial business, cultural, employment or personal ties that are of benefit to Australia and reasons for his absence from Australia. The invitation included details of the kinds of evidence of substantial ties that could be provided, including details of an Australian business, involvement in cultural activities, evidence of employment ties including an offer of employment, personal ties to Australia residents or citizens.

1. In response the applicant provided various documents including: a business card, showing his name and position at Standard Chartered; bank statement; Hong Kong tax return statement for 2017/2018; statement from the applicant addressing his imminent intentions to return to Australia, substantial ties and benefit to Australia and reasons for his absence.

1. The delegate considered this evidence and refused the application, not satisfied that he demonstrated sufficient evidence of substantial ties of benefit to Australia.

Evidence before the Tribunal

1. On 20 April 2023 the Tribunal informed the applicant his matter was allocated to a Member who will be considering cl.155.212 and he was invited to provide updated and current information to show that you have substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.

1. On 5 May 2023 the applicant provided a statement setting out the below information in response to the Tribunal’s invitation:

   My Absence

   My last visit to Australia is December 2016. After the outbreak of the pandemic, due to the travelling restriction imposed by the Hong Kong Government, I have not been able to visit overseas, including Australia. I think it is a compelling reason for my absence.
   The Hong Kong government just started lifting restrictive measures on about 28 December 2023. Owing to work and family commitment, I have not had a chance to visit Australia, but I have plan to visit Australia in around December 2023 to re-establish my connection with Australia.

   My Family Tie and social connections in Australia

   My sister is now living in Australia. I have a close relationship with my sister. Before the outbreak of pandemic, I visited her when I was available. I also have a group of friends who moved to Australia in the past few years which allows me to build up a strong social connection in Australia.

   My Personal Connection with Australia

   Australia is always my home. I did my undergraduate degree with the University of Adelaide. Besides, I am working in an international Private Bank, I have clients residing in Australia. I have planned to travel to Australia more frequently to strengthen my client connections.

   My Plan of Moving to Australia

   I have a plan to move to Australia for long-term stay. After the extension of my visa, I think it is time for me to execute my plan after preparation of several years in the following aspect:

   (a)Employment: I have been working in the financial industry for more than 10 years with various established financial institutions including Standard Chartered Bank, etc. I am now working with Bank Julius Baer in Hong Kong as a Director. I am confident that my knowledge in financial and investment is transferable across jurisdictions which enables me to obtain employment in similar capacity in Australia and make contributions to local economy.

(b)Financial Capability: My current annual remuneration is around HK$3million (equivalent to around AUD600K) and has accumulated a considerable amount of wealth which enables me to sustain my family’s living in Australia without reliance on social security in Australia.

(c)Family Status: I am married with two daughters now aged eight and four. Before, they were too small to move to Australia. But now, they are at the age of receiving education and I prefer them to receive a better education in Australia. I have planned to apply for Stanley College in Adelaide for my daughters. I think with the connection with my sister and her close family, I think it would not be difficult for my daughters to adapt new environment in Australia.

Given the aforesaid, I think there is a compelling reason for my absence in Australia in the past few years. Amid my absence, I am still maintaining my connection with my family and my friends in Australia. More importantly, I have a concrete plan to move to Australia with my family for a long-term stay. Therefore, I am looking forward to your esteemed department’s reconsideration of grant of visa to me.

Thank you very much for your consideration. Yours Sincerely,

1. At the hearing the applicant confirmed his migration and visa history as indicated in Department records. He confirmed he was granted his permanent visa on 28 May 2012, and has been outside Australia since then, with only two short visits in December 2012 and

December 2016 since then. He explained the reason for his absence is that he has been working in the banking industry in Hong Kong in this time. The applicant explained that initially he had no plans to return to Australia, but more recently he was thinking he wanted to send his wife and two children back to reside and study. He has a sister in Adelaide who has been living here for more than 20 years. The pandemic over recent years has interrupted his plans.

1. The applicant said he currently works at the Swiss Private Bank for the past 4 years. It would be difficult for him to leave his job because it is well paid and his future prospects are good. If he sends his wife and children back to Australia he can support them fully. He plans to buy a house for them and for his children to study here. His wife studied in Australia I the past also and so she is familiar with Australia, and he also has his sister here with whom he is close.

1. The applicant confirmed he has no current property in Australia. The Tribunal noted his statement to the Department indicating his plans to purchase a property. He has not progressed this because of the pandemic he was unable to visit and look at properties. The applicant confirmed he also has no business or cultural ties in Australia at this time. His personal ties are his sister. He last saw her here in December 2016 when he visited. She may have made one visit to Hong Kong in 2018 or 2019. The applicant stated he has two brothers and a father in Hong Kong and no other relatives in Australia.

1. The applicant stated his plans are for the future. He repeated that he may buy a house, initially for investment purposes and then after some years his wife and children can live there if they come. Regarding his employment he stated that he moved to his current job 4 years ago from Standard Chartered Bank. He is not looking to leave his current position and does not believe he can get a job as well paid as this in Australia. He may give his wife some capital to invest in a business project if she comes here. He has also talked with friends of his from when he lived here about investing in their restaurants but to date has not done so.

1. The Tribunal noted his claim that he has been prevented form travel because of the pandemic, noting that information before it indicates the pandemic only began in March 2020 and travel restrictions in Hong Kong started to ease last year1 and therefore it may not accept his prolonged absence form Australia can entirely be attributed to this. The applicant acknowledged this and confirmed that he has been travelling for work purposes to mainland China and Singapore since last year.

1. The Tribunal explained that if he cannot meet the requirements of cl.155.212(3) it will also consider whether he meets the requirements for Subclass 157, and for this it must be satisfied that there are compelling and compassionate reasons for leaving Australia. It notes he last departed in December 2016 and asked for the reasons for this visit and his departure. He said he came back because his permanent visa was expiring and he wanted to seek migration advice. He also visited his sister at this time. He only stayed a short time because of work commitments. The Tribunal noted the period of the visit was 4 days (7-11 December 2016).

1. The applicant explained his history as follows. He was initially refused his permanent visa because he did not lodge his IELTS results. He then returned to Hong Kong because he could not find work here and found a job there. When his visa was granted he could not forfeit that job to return here. The applicant explained that if his permanent visa was granted earlier he may have stayed here and found work. But as it turned out he started his career in Hong Kong and this is why he has been outside Australia for so long.

1 Hong Kong removes international travel quarantine after more than 900 days | CNN

1. The Tribunal asked if there was anything else he wanted to say. He said there was not.

FINDINGS AND REASONS

Lawful presence/substantial ties

1. 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.

1. In this case, the applicant is seeking to meet cl 155.212(3). The applicant does not meet or claim to meet any of the other subclauses in cl 155.212. Specifically, the applicant was not in Australia as the holder of a permanent resident visa for at least 2 years in the previous 5 years before the application was made he cannot meet cl 155.212(2). He was outside Australia at the time of application, and on that basis the applicant cannot meet

   cl 155.212(3A). The applicant does not claim to be the member of a family unit of a person who has been granted a subclass 155 visa and therefore he cannot meet cl. 155.212(4).

Does the applicant meet the substantial ties criterion?

1. 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.

1. Additionally, the applicant must not have been absent from Australia for continuous period of 5 years, unless there are compelling reasons for the absence. As the applicant was last in Australia in December 2016, he does not have to meet the compelling reasons requirement.

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

1. The Tribunal has considered the applicant’s information and evidence provided to the Department and Tribunal regarding his ties to Australia. He has not provided evidence of any substantial business, employment or cultural ties with Australia. His only personal tie is his sister who he claims is a longstanding permanent resident, and a claimed group of friends, but no supporting evidence has been provided from any of these individuals. The applicant claims his plan in future is for his wife and children to come here to live and study. His children are 8 and 4 years old now. The Tribunal notes the applicant indicated in his statement to the Department in 2018 that his plan then was to, imminently, resign from his job and he was looking to purchase a property in South Australia to live with his family.

   Since that time, he changed jobs in Hong Kong and in his oral evidence to the Tribunal he stated he has no imminent plans to change employment now. He has not taken any steps or made any efforts to purchase any property in Australia since his previous statement in 2018. Before the Tribunal he talked about the plan to reside here as one for the future and only relating to his wife and children. While the applicant claims he has close personal ties to his sister, he last visited her in Australia in December 2016, which the Tribunal notes was a visit of only 4 days. He told the Tribunal he may have seen her once in that period when she visited Hong Kong but he could not recall the dates. No other evidence is before the Tribunal from his sister or regarding the closeness or significance of this relationship.

1. Having considered the evidence before it the Tribunal is not satisfied the applicant has substantial business, cultural, employment or personal ties that are of benefit to Australia at the time of application or now. While it acknowledges his historical connection to Australia

having completed his undergraduate education in Adelaide, he subsequently commenced and has continued his career since that time outside Australia and the evidence indicates he only maintained minimal connection to Australia after obtaining his permanent residence visa.

1. Given the findings above, the applicant does not meet cl 155.212(3).

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

1. The Tribunal has also considered whether, on the material before it, the applicant meets the criteria for a Subclass 157 visa, which includes cl 157.212 as extracted in the attachment to this decision. Subclause (2) applies where a person is present for at least 1 day but less than 2 years in the period 5 years immediately before the application and was during that time, among other alternatives, the holder of a permanent visa and has compelling and compassionate reasons for departing Australia; or if outside Australia, had compelling and compassionate reasons for his last departure from Australia.

1. The Tribunal accepts that the applicant was present in Australia for at least 1 day but less than 2 years in the period 5 years immediately before the application, as the holder of a permanent visa. However it is not satisfied that he had compelling and compassionate reasons for his last departure from Australia. On his own evidence, he came to Australia on that occasion primarily to maintain his permanent residency as the visa was due to cease; he also wanted to seek migration advice about his options and while here he visited his sister. He explained that he only stayed for a short period because of work commitments. He offered no other reasons or explanation for his departure. On the basis of the information before it, the Tribunal is not satisfied there were compelling and compassionate reasons for the applicant’s last departure from Australia and therefore he does not meet cl.157.212(2).

1. There is no information before the Tribunal to suggest the applicant can meet cl.157.212(3) which requires that he is a member of a family unit for a person who has been granted a subclass 157 visa or meets the requirements of subclause (2) and has lodged a separate application for a Return (Residence)(Class BB) visa, and therefore he does not meet cl.157.212(3).

1. Therefore, the applicant does not meet cl.157.212.

1. Given the findings above, the Tribunal has no option but to affirm the decision under review. The applicant may wish to consider seeking advice about options available to him to apply for a visa to return to Australia when and his family are ready to make that move.

DECISION

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

Meena Sripathy 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:

Part 157

157.212

(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.

(1) The applicant meets the requirements of subclause (2) or (3).

(2)  The applicant meets the requirements of this subclause if the applicant:

(a)  was 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 and, during that time, the applicant:

(i)  was:

(A)  the holder of a permanent visa or a permanent entry permit; or

(B)  an Australian citizen; and

(ii)  was not the holder of:

(A)  a temporary visa (other than 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); or

(B)  a bridging visa; and

(b)  either:

(i)  has compelling and compassionate reasons for departing Australia; or

(ii)  if outside Australia, had compelling and compassionate reasons for his or her last departure from Australia.

(3)  The applicant meets the requirements of this subclause if the applicant is a member of the family unit of a person who:

(a)  has been granted a subclass 157 visa and that visa is still in effect; or

(b)  meets the requirements of subclause (2) and has lodged a separate application for a Return (Residence) (Class BB) visa.