Currenti (Migration)

[2020] AATA 3934

Currenti (Migration) [2020] AATA 3934 (21 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Petra Currenti

VISA APPLICANT:  Miss Sonja Meke

CASE NUMBER:  1836826

HOME AFFAIRS REFERENCE(S):          BCC2018/4536382

MEMBER:David Crawshay

DATE:21 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 21 July 2020 at 11:30am

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – lawful presence in Australia for relevant period – holder of temporary visa only – substantial beneficial ties with Australia – compelling reasons for the absence – Subclass 157 (Three Month Resident Return) – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 155.212, 157.212, 157.213

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 12 December 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 16 October 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 (the Regulations). Relevantly to this case, they include cl.155.212.

3. The delegate refused to grant the visa on the basis that the visa applicant did not meet cll.155.212(3) because, although there was a personal tie with Australia in the form of her Australian citizen sister:

   ·she last departed Australia in February 2011 as the holder of a visitor visa and not a permanent visa;

   ·she did not hold a permanent visa at the time of application;

   ·she has never held Australian citizenship; and

   ·she has been absent from Australia for a continuous period of five years or more immediately before the time of application and no compelling reason has been offered.

4. The delegate also found the visa applicant did not meet:

   ·clause 157.212(2) because she last left Australia in February 2011; and

   ·clause 157.212(3) because she was not a member of the family unit of a person who holds a current subclass 157 visa or has lodged a separate application for a class BB visa;

   ·clause 157.213 because no evidence of compelling and compassionate reasons for her absence were submitted.

5. The review applicant appeared before the Tribunal on 21 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband, Mr Carmelo Francesco.

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

   EVIDENCE

7. As part of the review, the review applicant has submitted a number of documents in support of the visa applicant being granted the visa.

8. The vast majority of the documents relate to the visa applicant’s employment and training history. It is clear from these documents that she has been diligent at her work over an extended period of time in Croatia, taking the opportunity to engage in professional development along the way.

9. The review applicant also submitted an undated letter from herself that sought to explain the compelling and compassionate circumstances of the visa applicant’s case. Although the Tribunal acknowledges this letter and the other documents submitted, it has not considered them in its decision as it is not necessary to do so. This is explained further below.

10. At hearing, the review applicant and her husband told the Tribunal that the visa applicant was young at the time that she last left Australia as a holder of a permanent visa in 1999. The review applicant was married to a man who had extensive family in Croatia and did not want to leave there. The review applicant went back to Croatia to pursue her relationship with her then-husband with a view that she would start a family.

11. The review applicant and her husband told the Tribunal that the visa applicant regrets her decision to not stay in Australia and apply for citizenship. She is now divorced with no children and is working in jobs that do not allow her to take more-than-two weeks of leave-per-year in order to travel to Australia. This makes it difficult for her to visit the review applicant and this will probably be the case for the next 20 years as she continues working.

12. Additionally, the review applicant and her husband told the Tribunal that the visa applicant has most of her family in Australia – the review applicant and her husband and three children, as well as an aunt. The parties’ father also lived in Australia until his death in 2017. In contrast, the only close family living in Croatia is the parties’ mother.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the visa applicant meets one of the alternative requirements under cl.155.212.

14. At the time of application, the visa applicant must meet one of the alternative requirements set out in cl.155.212. These requirements essentially relate to the visa 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.

15. In this case, the visa applicant is seeking to meet cll.155.212(2), (3) or (4). As the visa applicant was outside Australia at the time of application, the visa applicant cannot meet cl.155.212(3A).

    Was the applicant lawfully present in Australia?

16. 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.

17. In her visa application dated 12 October 2018, the visa applicant stated that she had not been present in Australia as an Australian citizen or permanent resident for periods totalling at least two years in the five-year period immediately before the date of visa application. At hearing, the review applicant confirmed this with the Tribunal.

18. The Tribunal notes that it is a requirement of cl.155.212(2) for the visa applicant to have been in Australia for that period of time as an Australian citizen or permanent resident.

19. Because the visa applicant does not satisfy this requirement, she does not meet cl.155.212(2).

    Does the applicant meet the substantial ties criterion?

20. Subclause 155.212(3), as extracted in the attachment to this decision, requires that if the visa 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.

21. Additionally, the visa applicant must have a particular residency/citizenship status or history and must not have been absent from Australia for a prescribed period unless there are compelling reasons for the absence.

22. In this regard, cl.155.212(3) requires that the visa 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).

23. 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 visa applicant’s absence and it is the visa 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].

24. The delegate stated in his decision that the visa applicant held a visitor visa at the time she last departed Australia (which was prior to the date of application). The Tribunal asked the review applicant at hearing whether this was true. She replied that it was and she held a Business (Short Stay) visa. In her visa application, the visa applicant stated that she was not an Australian citizen when she last departed Australia. In her visa application, the visa applicant also stated that she was not a permanent resident at the time of application. The review applicant confirmed these details with the Tribunal at hearing.

25. The Tribunal notes that it is a requirement of cl.155.212(3)(a), among other things, for the visa applicant to hold a permanent visa at the time of application, or to have been a permanent resident or Australian citizen at the time the visa applicant last departed Australia.

26. Because the visa applicant does not satisfy any of these requirements, she does not meet cl.155.212(3)(a). There is no need to consider compelling reasons for her absence.

27. In her visa application, the visa applicant stated that she has not been an Australian citizen or permanent resident in the 10 years immediately before the time of application. The review applicant confirmed this at hearing.

28. The Tribunal notes that it is a requirement of cl.155.212(3)(b) for the visa applicant to have held a permanent visa or been an Australian citizen in the 10 years immediately before the time of application.

29. Because the visa applicant does not satisfy either of these requirements, she does not meet cl.155.212(3)(b). There is no need to consider compelling reasons for her absence.

30. Accordingly, the Tribunal is not satisfied that at the time of application, the visa applicant meets the prescribed residency requirements under cll.155.212(3)(a) or 155.212(3)(b). It is unnecessary for the Tribunal to consider whether the visa applicant had substantial business, cultural, employment or personal ties with Australia of benefit to Australia, although the Tribunal does acknowledge the presence within Australia of several family members who were Australian citizens at the time of application.

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

    Does the applicant meet the family member criterion?

32. Subclause 155.212(4) is met if, at the time of application, the visa 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. For visa applications made before

    
    

    1 July 2012, the person may lodge a separate or combined application.

33. In her visa application, the visa applicant stated that she is not the partner or dependent family member of a person who holds a Resident Return visa. The review applicant confirmed this at hearing.

34. Accordingly, the visa applicant does not meet cl.155.212(4).

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

    Does the visa applicant meet any of the requirements under cl.157.212?

36. The Tribunal has considered whether the visa applicant meets the criteria for a Subclass 157 visa.

37. As above, the visa applicant stated in her visa application that she has not been an Australian citizen or permanent resident in the 10 years immediately before the time of application, and the review applicant confirmed this at hearing.

38. The Tribunal notes that it is a requirement of cl.157.212(2) for the visa applicant to have been in Australia as a permanent resident or Australian citizen for a period or periods of more than one day but less than two years immediately before the date of application. Because of the information above, the visa applicant cannot satisfy this requirement.

39. Because the visa applicant does not satisfy this requirement, she does not meet cl.157.212(2). There is no need to consider compelling and compassionate reasons for departing Australia.

40. Lastly, the Tribunal has seen no evidence to show that the visa applicant meets either of the family member criteria under cl.157.212(3).

41. Accordingly, the visa applicant does not meet cl.157.212 and does not meet the criteria for the grant of a Subclass 157 visa. Although the delegate in his decision made findings against the criteria under cl.157.213, the Tribunal has not found it necessary to do so as it has already found that the visa applicant does not meet cl.157.212, which is a requirement for the grant of a Subclass 157 visa.

    DECISION

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

    David Crawshay
    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.