de Vaulx (Migration)

[2020] AATA 4546

de Vaulx (Migration) [2020] AATA 4546 (7 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Veronique Anne Marie de Vaulx

VISA APPLICANT:  Ms Betty Sabine Noel

CASE NUMBER:  1909393

HOME AFFAIRS REFERENCE(S):          BCC2018/1088536

MEMBER:Hugh Sanderson

DATE:7 August 2020

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 7 August 2020 at 3:19pm

CATCHWORDS

MIGRATION – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – substantial ties to Australia of benefit to Australia – residency requirements – applicant remained outside Australia despite visa grants – intention to reside in Australia – studies, sporting activities and employment in France – compelling reasons for the absence – decision under review affirmed    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 155.212, 157.212, 155.213

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 27 March 2019 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 7 March 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).

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.155.212 and cls.157.212 and 157.213 because the delegate was not satisfied that the applicant had substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia, or there was a compelling reason for her absence.

   Background

4. The visa applicant is a citizen of France and is currently 32 years old. The review applicant is her mother. The visa applicant was granted a Subclass 801 Partner (Residence) visa on 6 June 2008 as a member of the family unit of her mother who was the primary applicant. The visa applicant then departed Australia 19 days later on 25 June 2008. The visa applicant returned to Australia on 1 July 2010, remaining for 21 days, departing again on 22 July 2010. She has not returned to Australia since that date.

5. Since she was granted the Subclass 801 Partner (Residence) visa, the visa applicant’s mother has travelled overseas on 28 separate occasions.

6. The visa applicant has applied for and been granted Subclass 155 Five Year Return Resident visas on the following occasions:

   ·5 June 2013;

   ·22 May 2014;

   ·17 April 2015;

   ·21 March 2016; and

   ·7 March 2017.

7. After each occasion after the applicant was granted the Return Resident visa, she did not enter Australia.

8. The visa applicant applied for a further Return Resident visa on 7 March 2018. As the applicant had not entered Australia for more than five years, she was asked to provide further information including details of the ties that she had in Australia, compelling reasons for her absence and information to show it was her intention to reside in Australia.

9. The applicant provided a statement where she made the following claims:

   ·After she completed high school in Darwin, the visa applicant travelled overseas and then decided to study journalism in Paris;

   ·The visa applicant got a job in Paris in 2013;

   ·In 2014, the visa applicant injured herself playing semi-professional soccer and was in rehabilitation for several months;

   ·In September 2015, the visa applicant was offered her “dream job” at Nike in Paris and she has been in that job since then;

   ·The visa applicant claimed that she intended to return to Australia as soon as possible;

   ·The visa applicant believes that she would be of great benefit to any international company based in Australia which may possibly be Nike as they have an office in Australia;

   ·It was difficult for the visa applicant to return to Australia when her career was progressing so well; and

   ·The visa applicant is young and fit and would be a great asset to Australia.

10. The delegate who considered the application noted the following:

    ·As the visa applicant had not been in Australia for more than five years at the time of the application, she was required to satisfy the criteria in cl.155.212(3);

    ·The visa applicant had previously been granted five Return Resident visas but had chosen not to return to Australia;

    ·The visa applicant’s mother is an Australian citizen living in Australia, but the visa applicant is an adult and is not dependent upon her mother;

    ·The visa applicant is not a participating member of the Australian economy or community;

    ·The visa applicant is employed in a permanent position in Paris and there is no indication that she has any concrete plans to work and live in Australia; and

    ·The visa applicant spent a total of only 42 days in Australia since she was granted the Subclass 801 Spouse visa on 6 June 2008.

11. Taking into account the above, the delegate was not satisfied that the visa applicant had substantial ties with Australia and there were no compelling reasons for her absence. Accordingly, the delegate found the applicant did not meet the criteria in cl.155.212 and cl.157.213 and refused the application.

    Information to the Tribunal

12. The review applicant appeared before the Tribunal via video hearing on 4 August 2020 to give evidence and present arguments. The Tribunal also received evidence from the visa applicant.

13. The review applicant said that she was working as a nurse and living by herself. She separated from her former partner in 2011. She said that she had no other family in Australia. Her daughter, mother, brother and other relatives live in France. She has one brother who lives in the United States.

14. The review applicant described the visa applicant’s current employment. She said that she had been in her current employment for one year after leaving Nike. She said that her daughter did not have any job offers in Australia. She said that she believed her daughter was only able to take four weeks’ holiday each year and so was not able to travel to Australia as it would be pointless to travel for less than five weeks. She said that her daughter was compelled to remain overseas since she was granted her permanent visa due to circumstances including her work, her boyfriend and her sporting activities.

15. The review applicant said that as she has no other family in Australia, it is important that the visa applicant be able to join her. She said that she had previously travelled to France twice a year but had recently only travelled every year, and with the current travel restrictions due to the COVID‑19 pandemic she is not able to return to France.

16. The visa applicant said that she was currently living by herself. She had been in her current employment for about a year and it was due to end in September 2020. Prior to that, she had been working for Nike for four years but was offered a better position with her current employer. She said that she is given five weeks’ holiday each year from her employer, but she is busy with her sports activities and other commitments in France. This was the reason that she had not travelled to Australia at any time since 2010. She said that her life was very complicated which was why she had not been able to return to Australia.

17. The visa applicant said that her ties to Australia were that she had grown up there when she was younger and her mother now lives in Australia and they have a close relationship. She said the period of time that she has spent out of Australia has been complicated and she had very little time to be able to travel to Australia. She said that her job opportunities, her sporting activities and other things kept her in France.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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.

20. In this case, the applicant is seeking to meet cl.155.212(3). The applicant does not claim to meet any of the other subclauses in cl.155.212. 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?

21. 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.

22. 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.

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

23. There is no information before the Tribunal that the visa applicant has any substantial business, cultural or employment ties with Australia. Although she has indicated that the skills that she has developed in her employment in France could be used in Australia, possibly with the international company that she still has an association with, there is nothing to indicate the visa applicant has applied for or been offered any work in Australia or currently has any intention to apply for work in Australia. There is nothing to indicate that the visa applicant has any cultural ties to Australia apart from having attended school in Darwin for a period in her youth.

24. The claim made by the review applicant and the visa applicant is that her relationship with her mother provides the personal tie that is of benefit to Australia.

25. The visa applicant was granted her Subclass 801 Partner (Residence) visa on the basis of being a member of the family unit of her mother, the review applicant. The visa applicant was 19 years old at the time she was granted the visa. In the two years before she was granted the visa, she had spent the majority of her time outside Australia. The review applicant explained this by saying that the care arrangements she had with the visa applicant’s father, who remained in France, were shared. The visa applicant returned to Australia two days before being granted the Subclass 801 visa and then departed again 19 days later. The only time she has returned to Australia was in 2010 for 21 days to attend her mother’s 50^th birthday celebrations.

26. The review applicant has been able to travel regularly to France to spend time with her daughter there. Although the current COVID-19 travel restrictions have prevented the review applicant returning to France this year, those travel restrictions will eventually cease and it is likely that the review applicant will continue her pattern of travelling to France to spend time with her mother and daughter there at least once a year. This is how she has conducted her affairs since she was granted her Subclass 820 Partner (Temporary) visa in 2005.

27. Although the Tribunal accepts that the visa applicant has a good relationship with the review applicant, the Tribunal is not satisfied that those personal ties are of benefit to Australia. The visa applicant has only chosen to visit Australia on one occasion since 2008 to attend her mother’s 50^th birthday celebrations. There is nothing to indicate that the visa applicant, if she wished to spend time with her mother in Australia, could not have travelled to Australia for holidays over the subsequent eight years before she applied for the current visa. The Tribunal does not accept the argument that she was not able to obtain sufficient holidays to make the travel to Australia worthwhile. The review applicant has been able to make arrangements with her employment and travelled to France for periods she considered sufficient, and the Tribunal does not accept that the visa applicant could not do the same if her personal ties with her mother were such that it was of benefit to Australia.

28. The visa applicant, understandably, made a decision over the 10 years after being granted the Subclass 820 visa until making this current application to pursue her career and sporting activities in France. She has been able to maintain a relationship with her mother and there is nothing to indicate that that relationship will not continue. Her mother continues to work and is not dependent upon the visa applicant for any reason. If the visa applicant is not granted the Subclass 155 visa, it will not stop her visiting and spending time with her mother in Australia, as she did for 21 days in 2010. The review applicant has been granted five Subclass 155 visas prior to the current application and at no time after the grant of those visas did she return to Australia or show any intention or plans to spend any time in Australia. The Tribunal is not satisfied the visa applicant has substantial personal ties to Australia which are of benefit to Australia.

29. Accordingly, the Tribunal is not satisfied that at the time of application, the visa applicant had substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.

    Does the applicant meet the prescribed residency requirements?

30. 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 five 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 five years since last departing Australia as a citizen or permanent resident (unless there are compelling reasons for the absence).

31. 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].

32. At the time of the application, the applicant had been absent from Australia for a period of almost eight years. As the applicant had been absent from Australia for a continuous period of more than five years immediately before the application for the visa, the Tribunal has considered whether there are compelling reasons for the absence.

33. The only claims made in relation to why the visa applicant was absent over that time was that she had been offered her “dream job” at Nike in Paris. She had been in a relationship for a short period and was also actively involved in playing semi‑professional football and suffered an injury. The visa applicant claimed that it was difficult to return to Australia when her career was progressing so well.

34. These claims seem to indicate that the visa applicant was simply living her life as would be expected in France. She has other family members who live in France, including her maternal grandmother and her father, however there is no evidence that they have ever been dependent on her. She had been able to achieve significant results in her sporting and professional activities and decided to pursue the advancement of her professional career by accepting work in Paris. This is not surprising. This is what life is. The visa applicant was simply making a decision of what course of action would be best for her and what she wanted to do. She could have decided to return to Australia and pursued a career that may have presented itself in Australia; instead, she decided to continue to live in France and continue her life there. This included, for a time, living with her boyfriend.

35. The Tribunal is not satisfied that the reasons for the visa applicant’s absence from Australia for the period from when she last was in Australia to the date of the application are compelling. The visa applicant was simply living the life that she chose and seeking and accepting offers put to her for the development of her career in France. If she wanted, she could have chosen to seek similar career progression and sporting activities in Australia, but she chose to remain in France as she considered the opportunity superior and fitted in with the life she wished to lead. The Tribunal is not satisfied that at any time the visa applicant was living in France, she was or felt that she was compelled to remain in France and not return to Australia.

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

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

38. Given the above findings in respect of whether the applicant meets the criteria for the grant of a Subclass 155 visa, the applicant does not meet the criteria for the grant of a Subclass 157 visa. The applicant was not present in Australia for a period of more than five years prior to the lodgement of the current application, and for the reasons set out above the Tribunal is not satisfied there are compelling and compassionate reasons for her absence. Accordingly, the applicant does not meet the criteria for the grant of a Subclass 157 visa.

39. For the above reasons, the Tribunal affirms the decision of the Department to refuse the applicant the Subclass 155 and Subclass 157 visas.

    DECISION

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

    Hugh Sanderson
    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.