Davis (Migration)

[2018] AATA 1799

Davis (Migration) [2018] AATA 1799 (29 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Keith Allan Davis

VISA APPLICANT:  Mrs Susanne Davis

CASE NUMBER:  1725059

DIBP REFERENCE(S):  BCC2017/2887220

MEMBER:K. Chapman

DATE:29 April 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 29 April 2018 at 6:41pm

CATCHWORDS
Migration – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – Visa applicant – did not last depart Australia as a permanent resident – Returned to Sweden to care for mother and for daughter’s schooling – Remained in Sweden to obtain her full Swedish pension – Substantial ties to Australia – Employed Australian citizen spouse and daughter – Frequently visit Australia – Emotional hardship if separated from family – Ministerial Intervention referral – Decision under review affirmed

LEGISLATION
Migration Act 1958 ss 65,351
Migration Regulations 1994 Schedule 2 cls 155.212, 157.212

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 Immigration on 28 September 2017 to refuse to grant the visa applicant, Mrs Susanne Davis, a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (‘the Act’). The visa applicant is a citizen of Sweden. She was outside Australia when she applied for the visa, but has since returned to this country holding a Visitor visa following the delegate’s visa refusal decision.

2. The visa applicant applied to the Department of Immigration for the Return (Residence) (Class BB) visa on 9 August 2017. 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’).

3. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.155.212 because her last permanent visa, a Resident Return visa, ceased on 4 May 1992, she did not most recently depart Australia holding a permanent visa and she applied for the current visa offshore. Therefore, she did not meet the residency status and history requirements for the grant of the Subclass 155 visa. For similar reasons, the delegate determined that the visa applicant also did not meet the requirements for the grant of a Subclass 157 visa.

4. The husband of the visa applicant, Mr Keith Allan Davis, is an Australian citizen by birth. He is the review applicant in this matter on the basis of being the spouse of the visa applicant. The review applicant applied for review of the visa refusal decision on 15 October 2017, providing a copy of that decision with his application for review.

5. The review applicant appeared in person before the Tribunal on 20 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence in person from the visa applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issues in this case concern the residency status and history of the visa applicant. As reflected in the delegate’s visa refusal decision, a copy of which was provided to the Tribunal by the review applicant, the visa applicant last held a permanent visa (Resident Return) on 4 May 1992. She has made frequent visits to Australia since that time holding a series of Visitor visas. Her last departure from Australia prior to the Subclass 155 visa application was on 16 March 2017 as the holder of a Subclass 651 (eVisitor visa). The aforementioned Subclass 651 visa is a temporary visa. Both the review applicant and the visa applicant gave oral evidence to the Tribunal accepting that the aforementioned history is correct.

   Lawful presence/substantial ties

8. At the time of the visa 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.

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

   Was the visa applicant lawfully present in Australia?

10. Subclause 155.212(2) is met if the visa 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.

11. It is not in dispute that the visa applicant, in the period of 5 years immediately before the Subclass 155 visa application, was not an Australian citizen, or the holder of a permanent visa or the holder of a permanent entry permit. Accordingly, the visa applicant does not meet the requirements of cl.155.212(2).

    Does the visa applicant meet the substantial ties criterion?

12. 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.

13. Additionally, the visa 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.

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

14. The visa applicant has an Australian citizen daughter aged 24 years who resides in this country. The visa applicant is married to an Australian citizen by birth and is related by marriage to several Australian citizens. The visa applicant has also regularly visited Australia from her home in Sweden for approximately 25 years. Accordingly, the Tribunal is satisfied that at the time of application the visa applicant had substantial personal ties with Australia that are of benefit to Australia.

    Does the visa applicant meet the prescribed residency requirements?

15. In addition to having substantial ties to Australia, 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).

16. 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].

17. For reasons expressed below, the Tribunal is satisfied that there are compelling reasons for the visa applicant’s absence from Australia. However, it is not in dispute that the visa applicant does not hold a permanent visa, did not last depart Australia as a permanent resident, did not last depart Australia as an Australian citizen, and she was not an Australian citizen or Australian permanent resident less than 10 years before the application for the Subclass 155 visa. Accordingly the Tribunal finds that at the time of application, the visa applicant does not meet the prescribed residency requirements.

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

    Does the visa applicant meet the family member criterion?

19. 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.

20. It is not in dispute that the visa applicant is not a member of the family unit of a person who either holds or has applied for a Subclass 155 visa. Accordingly, the visa applicant does not meet the requirements of cl.155.212(4).

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

    Does the visa applicant meet the criterion for a Subclass 157 visa?

22. Given that the visa applicant was not an Australian citizen, or the holder of a permanent visa or a permanent entry permit, in the period 5 years immediately before the application for the Subclass 157 visa, she does not satisfy the requirements of cl.157.212(2). Further, the visa applicant is not a member of the family unit of a person who has been granted a Subclass 157 visa or has applied for such a visa. Accordingly, she does not satisfy the requirements of cl.157.212(3).

23. For the reasons above, the Tribunal finds that the visa applicant does not meet the criteria for the grant of a Subclass 157 visa.

    MINISTERIAL INTERVENTION

24. The Tribunal is sympathetic to the circumstances of the visa applicant and her family in Australia. The Tribunal is satisfied that the visa applicant and the review applicant are both upstanding persons who provided truthful and frank evidence. However, the Tribunal’s duty is to apply the law in this matter in a dispassionate manner. It has accordingly done so, even though the result is to produce an outcome that is unfortunate for the visa applicant and her family in Australia.  

25. The review and visa applicants’ have requested the Tribunal to refer their case to the Department for consideration by the Minister pursuant to s.351 of the Act, which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to them, if the Minister thinks that it is in the public interest to do so.

26. The Minister has issued guidelines explaining the circumstances in which they may wish to consider exercising their public interest powers under s.351 of the Act. Those guidelines indicate that the Minister will generally only consider exercising their public interest powers in cases which are referred to the Department by a review tribunal or which exhibit one or more unique or exceptional circumstances. Departmental policy concerning Ministerial Intervention notes as a relevant factor, strong compassionate circumstances such that a failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or an Australian family unit and considerations relating to an Australian citizen’s age, health and psychological state.

27. It was submitted by the review and visa applicants’ that strong compassionate circumstances are present in their case. They have enjoyed a long marriage to each other and have resided together in both Australia and Sweden. After their marriage in 1989 in Australia, the visa applicant acquired permanent residence and worked in this country until late 1990. The couple then moved to Sweden together due to tough economic times in Australia and also to provide support to the visa applicant’s mother who was ageing. Whilst in Sweden they assisted the visa applicant’s mother. The visa applicant’s Australian permanent residence visa expired in 1992 and was not renewed. In January 1994 the couple’s daughter was born in Sweden, she is an Australian citizen by descent and now lives in Brisbane. Following the birth of her daughter, the visa applicant regularly visited Australia holding Visitor visas.

28. The visa and review applicants’ remained living in Sweden to care for the former’s mother and also to enable their daughter to undertake her schooling. When the visa applicant’s mother passed away in 2009, they remained in Sweden so their daughter could finish secondary school which happened in 2013. The visa applicant was then required to remain in Sweden until 1 July 2017 in order to obtain her full Swedish pension. Had she departed earlier she would have incurred a disadvantageous pension arrangement. Once her pension was acquired, she and the review applicant undertook preparations to move to Australia permanently. At that time their daughter had established herself in Brisbane and the review applicant’s adoptive and biological parents were elderly. The visa applicant received advice from Departmental staff offshore to apply for the Return (Residence) (Class BB) visa, which was subsequently refused. The visa and review applicants’ invested significant funds in having their possessions relocated to Australia and the latter obtained work in his native country. The visa applicant returned to Australia holding a Subclass 600 Visitor visa, which she continues to hold.

29. The Australian citizen review applicant advised that it would be crushing financially if they had to relocate back to Sweden, he would lose his employment in Australia, and at the age of 54 years he would struggle to find employment back in Sweden. His daughter, adoptive parents, biological parents and siblings, who are all Australian citizens, would face emotional hardship if he and the visa applicant were forced to depart Australia. The adoptive parents and biological parents of the review applicant are now elderly and have health issues. The review and visa applicants’ provide a measure of emotional support to them with regard to these matters. The review and visa applicants’ live in rental accommodation in Australia near their daughter, but cannot obtain finance to purchase a property due to the visa applicant’s temporary visa status.

30. The Tribunal observes that if the visa applicant, a Swedish citizen who has previously held Australian permanent residence, is forced to depart Australia then emotional harm and hardship will be suffered by her Australian citizen husband and daughter, in addition to the other members of her husband’s family. Further, the visa applicant has only one sibling remaining in Sweden and therefore the bulk of her remaining family are resident in Australia. It is clear to the Tribunal that the review applicant and his daughter are both employed Australian citizens who are productive members of the community.

31. The Tribunal has considered the visa applicant’s case and the Ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s Guidelines on Ministerial Powers (s345, s351, s391, s417, s454 and s501J)’. For the reasons outlined above, the Tribunal refers this case to the Department for the Minister’s attention. The Tribunal respectfully recommends that the Minister exercises the powers pursuant to s.351 of the Act with regard to the visa applicant.

    DECISION

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

    K. Chapman
    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.