Cowie-Willox (Migration)

[2021] AATA 2708

Cowie-Willox (Migration) [2021] AATA 2708 (12 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Anthony Cowie-Willox

VISA APPLICANT:  Mr Adrian Cowie-Willox

CASE NUMBER:  2016761

HOME AFFAIRS REFERENCE(S):          BCC2020/1818748

MEMBER:Michael Cooke

DATE:12 May 2021

PLACE OF DECISION:  Sydney

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 criterion for a Subclass 155 (Five Year Resident Return) visa:

·cl.155.212(3) of Schedule 2 to the Regulations

Statement made on 12 May 2021 at 4:38pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – substantial ties criterion – personal ties – business ties – prescribed residency requirements – period of continued absence from Australia exceeded 5 years – ‘compelling reasons’ for waiver – 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 9 September 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 June 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.

3. The delegate refused to grant the visa on the basis that the applicant did not meet any of the criteria pursuant to cl.155.212.

4. The Tribunal has received a submission from the review applicant’s representative which sets out comprehensively the various travails that have befallen the visa applicant since his initial migration to Australia and subsequent return to the Republic of South Africa. The submission also outlines the very significant personal and business ties he has with Australian and which are beneficial to it.

5. The review applicant was represented in relation to the review by his registered migration agent.

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 can meet any of the requirements of cl.155.212 of the regulations..

   Lawful presence/substantial ties

8. 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. In this case, the applicant is seeking to meet cl.155.212(3). As the applicant was outside Australia at the time of application, the applicant cannot meet cl.155.212(3A).

   Does the applicant meet the substantial ties criterion?

10. 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.

11. 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.

12. The Tribunal finds that the applicant was outside Australia at the time of application.

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

13. The visa applicant has indicated he has the following personal ties to Australia:

    ·The visa applicant’s brother, Anthony COWIE-WILLOX, (the review applicant) is an Australian citizen and has been living in Australia permanently since July 1996. He officially became an Australian citizen on 22 June 2010.

    ·Anthony’s wife, Patricia COWIE-WILLOX, (The visa applicants’ sister-in-law) has also been living in Australia permanently and became an Australian citizen on 15 May 2002.

    ·Anthony and Patricia COWIE-WILLOX also have two children who are the visa applicant’s niece and nephew. The visa applicant and his family would be able to provide substantial and emotional support to his brother Anthony COWIE-WILLOX and his family and would reunite the family.

    ·The visa applicant’s mother-in-law, Diana RYNKIEWICZ (Monica COWIE-WILLOX’s mother) lives in Australia permanently and became a citizen on 28 November 1996.

    ·The visa applicant also has two sisters-in-law (Monica COWIE-WILLOX’s sisters) and a brother-in-law (Monica COWIE-WILLOX’s sister’s husband) who are all Australian citizens and have been living permanently in Australia.

    ·The visa applicant’s sister-in-law, Nicola BRENER and brother-in-law, Dan BRENER, have been Australian citizens since 27 March 1985 and 18 July 1984, respectively.

    ·The visa applicant’s other sister-in-law, Carola CHARLAFF, has been an Australian citizen since 8 February 1995. Carola CHARLAFF also has two children who are the visa applicant’s nieces.

14. The visa applicant has indicated the following business ties to Australia:

    ·The visa applicant purchased two properties in August 2007 as part of his plans to return to Australia, permanently.

    ·One property was in Coomera Waters, Queensland, that his family were going to live in and another in Robina, Queensland, as it was near the Universities. His plan was to rent out the Robina unit until his children were of age to attend Bond University and be able live there.

    ·The Robina unit has been rented out since it was purchased. The visa applicant has therefore provided a stable long-term rental home to his tenants. The visa applicant has used the services of an onsite manager and letting agent, who he pays a monthly fee to. This rental agent-landlord relationship has been long-term and has provided an income stream for the letting agent and her company for over 10 years.

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

    Does the applicant meet the prescribed residency requirements?

16. 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).

17. 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].

18. The Tribunal finds that at time of application the visa applicant last held a permanent visa (a BF126 Permanent Independent Entrant Visa) on 04 March 2000. He left Australia as a permanent resident.

19. The visa applicant’s period of continued absence from Australia immediately before the visa application was more than 5 years.

20. The Tribunal has examined the comprehensive submission of the visa applicant and finds that there are ‘compelling reasons’ for waiver of the absence requirement as follows.

21. The applicant migrated twice to Australia fully intending (along with his wider family) to remain permanently and take out citizenship. However, his parents were involved in a serious car accident followed by further ill health. They were left in South Africa with no one to look after them adequately. In these circumstances, reluctantly, but for deeply compassionate reasons as a loving son, the visa applicant and his family felt obliged to return and care for his parents. 

22. This care regime later entailed further health issues for his father who sadly died from cancer in 2004. The applicant in the interim had to re-establish himself in business. His children who had been enrolled in school in Australia began school life anew in South Africa. When the applicant sought to return to Australia, his business enterprise became imperilled in a legal quagmire with the Shell company. It was not resolved (successfully) until 2009. Further issues with a migration agent and crucial missing paperwork and an application for the wrong visa subclass (he informs) led to his application for migration being rejected as invalid by the Department in July 2008. By that time the applicant was older than 45 and ineligible for migration. His children had also begun their tertiary education and his mother had a stroke which entailed further care. Fortunately, she has fully recovered according to her doctors. The applicant proposed to return to Australia recently and secured a Visitor visa, but the COVID 19 pandemic has effectively prevented him from so doing and the visa has expired.

23. Looking expansively at the visa applicant’s potted history it appears that his life ambition was to migrate and make a new life in Australia (with other family members). This dream has been thwarted (temporarily) by the” slings and arrows of outrageous misfortune” as the saying goes exacerbated by problems in his busines life - over which he has had no control. He always desired to return permanently to Australia as the application (the subject of this review) indicates and thus reunite with his extended family (see earlier).

24. The Tribunal (assisted by a well-argued submission) is satisfied that there are ‘compelling reasons’ for his prolonged absence. The reasons he has advanced are credible and ‘forceful’ reasons for waiver of the requirement that ‘he has not been continuously absent from Australia for 5 years or more immediately before the visa application’.

25. Accordingly, the Tribunal is satisfied that at the time of application, the applicant meets the prescribed residency requirements.

26. Given the findings above, the applicant meets cl.155.212(3).

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(3) of Schedule 2 to the Regulations

    Michael Cooke
    Senior 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.