Dharmawan (Migration)

[2020] AATA 3928

Dharmawan (Migration) [2020] AATA 3928 (21 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dwinarto Dharmawan

VISA APPLICANT:  Ms Joannita Joannita

CASE NUMBER:  1823630

HOME AFFAIRS REFERENCE(S):          BCC2017/4776920

MEMBER:Helena Claringbold

DATE:21 July 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 21 July 2020 at 2:37pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – lawful presence in Australia for relevant period – length of time spent onshore – substantial beneficial ties with Australia – employment or business activities – Australian citizen siblings – Subclass 157 (Three Month Resident Return) – compelling and compassionate reasons for last departure from Australia – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 14 December 2017, Ms Joannita Joannita, the visa applicant, applied for a Return (Residence) (Class BB) (RRV) visa.

2. On 31 July 2018, a delegate of the Minister for Home Affairs refused to grant the visa. The refusal was based on the visa applicant not meeting cl.155.212 of Schedule 2 to the Migration Regulations made under the Migration Act 1958.. This is a review of the delegate’s decision. On 15 August 2018, the review applicant provided the Tribunal with a copy of the delegate’s decision record.

3. On 7 July 2020, the review applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and Mr Trisatya Dharmawan. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and completely, all the evidence in the Department of Home Affairs’ (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in this case is whether the visa applicant meets the requirements for the grant of a Subclass 155 or a Subclass 157 visa.

   BACKGROUND ON THE EVIDENCE

7. The visa applicant was born in 1985 in Jakarta, Indonesia. She entered Australia on 8 June 1997 as the holder of a Subclass 676 Tourist Short Stay visa which ceased on 13 June 1998. In 1999 she was granted a Business Owner Subclass 127 visa. Between 2004 and 2016, she was granted five RRV visas. She is currently the holder of a Subclass 600 Visitor visa which is due to expire on 17 December 2021.

8. Her parents live in Indonesia.  She has two Australian citizen brothers, who live in Australia. They are Mr Dwinarto Dharmawan, the review applicant and Mr Trisatya Dharmawan. 

   The Return (Residence) (Class BB) visa

9. The Return (Residence) (Class BB) visa is a visa for Australian permanent residents and certain former Australian citizens or former Australian permanent residents who are seeking to return to Australia after a period of absence. This class of visa contains two subclasses: Subclass 155 (Five Year Resident Return) and Subclass 157 (Three Month Resident Return).

   Subclass 155 Five Year Resident Return

   Criteria to be satisfied at the time of application

10. Clause 155.212(1) of Schedule 2 to the Regulations requires that the visa applicant meets the requirements of cl.155.212(2), (3), (3A) or (4). 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 which are a benefit to Australia or being a member of the family unit of a person who meets these requirements.

    Was the visa applicant lawfully present in Australia during the relevant time?

11. Clause 155.212(2) of Schedule 2 to the Regulations essentially requires that the visa applicant was lawfully present in Australia for a period of, or periods that total, not less than 2 years in the period of 5 years immediately before the application for the visa 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.

12. The evidence before the Tribunal as detailed in the delegate’s decision record, is that on 30 November 1999, the visa applicant was granted a Business Owner Subclass 127 visa while offshore. The visa applicant was present in Australia as the holder of a permanent visa for 174 days in the 5 years immediately before lodging the application for the visa. The visa applicant was not in Australia as the holder of a permanent visa for at least 2 years in the last 5 years immediately before lodging the application for the visa. Therefore, the visa applicant does not meet cl.155.212(2) of Schedule 2 to the Regulations.

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

13. Clause 155.212(3) of Schedule 2 to the Regulations requires that where the visa applicant is outside of Australia, the Minister is satisfied that the visa applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia. Additionally, the visa applicant must have a residency or citizenship status or history and not have been absent from Australia for a prescribed period, unless there are compelling reasons for the absence.

14. On 14 December 2017, the application for the visa was lodged from outside of Australia. In January 2018, the visa applicant stated the following: that she lived in Australia from 2001 for around 10 years. In her work as a professional she travelled out of Australia and returned to Australia multiple times. The reason for her last visit to Australia in May-June 2017 was to help care for her mother who was having medical treatment.  After her mother’s medical treatment, she departed Australia for work duties. She plans to return and live permanently in Australia in the near future.  She has two siblings who are Australian citizens who live and work professionally in Australia.

15. In April 2018, the review applicant’s migration agent stated the following: that since high school (2004) the visa applicant was in Australia in excess of 10 years. She graduated from the University of New South Wales (2008) and worked as a researcher and paid income tax. As a graduate she should be able to find employment in Australia in the near future. She is temporarily outside of Australia to be with her partner who she intends to sponsor for a partner visa in the near future. The visa applicant’s two brothers live in a property in Botany owned by their parents and their parents own another property in Mascot. The visa applicant has substantial ties which are beneficial to Australia. Other information provided includes the following: an Australian Tax Office (ATO) notice of assessment for the year ending 30 June 2010 in the visa applicant’s name; information about her education; a rate notice and utility bills addressed to members of the visa applicant’s family; and other information about her siblings.  On 2 July 2020, the review applicant’s migration agent wrote to the Tribunal and stated that the review applicant had intended to visit the visa applicant in Jakarta but due to the COVID-19 pandemic the visit was cancelled. The migration agent provided an ATO assessment for the review applicant for 2019.

16. The review applicant told the Tribunal the following: that his parents live in Indonesia but visit Australia yearly and stay for about 5 weeks. The visa applicant’s last continuous stay in Australia was in 2011 and she has not lived in Australia since then. She left Australia in 2011 to work in the family furniture fit-out business in Indonesia but planned to return to Australia to live. She met and married her husband in Indonesia in 2015 and remained in Indonesia to run the family business.  She planned to start a family in Australia, but the visa was refused (31 July 2018).  In August 2018, she gave birth to her first child in Indonesia. Her husband runs his own business in Indonesia. The visa applicant and her husband live with their child in a property they own. Because of her business and family commitments in Indonesia it is challenging for her to spend significant time in Australia. She gained substantial business skills working in the family business in Indonesia and now owns the business with her parents. When the conditions of COVID-19 ease she intends to start an importing and exporting business between- Indonesia and Australia.  She visits Australia regularly to maintain her relationship with her brothers and during her last trip to Australia (2020) she investigated business opportunities. She also intends to use her skills by piloting a fit-out of her brother’s café in Australia to showcase her work and offer the fit-out service to others.  She plans to return to Australia to educate her son and apply for a partner visa for her husband and continue her married and family life in Australia. She will initially live with her brothers and then purchase an apartment to live in.

17. The visa applicant told the Tribunal the following: that she returned to Indonesia because she found it challenging to find employment in Australia.  She has been absent from Australia because she has been running the family business in Indonesia. She returned to Indonesia to gain experience and planned to return to Australia.  She met her husband when working in Indonesia and they married in 2015 and settled down.  As a result of the time it took to process the visa application her circumstances changed and she gave birth to her son in August 2018. She sees her siblings quite often as they visit each other regularly. She believes she has gained experience that she can use to contribute to Australia.  She plans to return to Australia and have her son educated in Australia and to apply for a partner visa for her husband. The COVID-19 environment prevented a planned trip to Australia taking place.

18. Mr Trisatya Dharmawan told the Tribunal the following.  The visa applicant has a lot of ties with Australia.  She completed her high school education and university education in Australia. She has been working in the family business to gain experience for when she returns to Australia.  His father’s business in wood manufacturing supported them financially to come to Australia and study and the visa applicant continues that business. The visa applicant regularly visits Australia and looks for business opportunities. He visited the visa applicant in December 2019.

19. The information provided in the delegate’s decision record dated 31 July 2018, is as follows: that on 30 November 1999, the visa applicant was granted a Business Owner Subclass 127 visa. Her travel movements record that in the 10 years since she spent 9.5 percent or 174 days in Australia and 90.5 percent or 1651 days overseas. Since arriving in Australia as a permanent resident, her longest stay in Australia was from February 2002 to January 2004 for 716 days. From 2004 to 2016, the applicant had 5 RRV visas granted. Departmental records show that she didn’t reside in Australia following the grant of the RRVs but travelled to Australia for short visits.

20. The Tribunal considered the evidence individually and completely.  The Tribunal accepts that the applicant went to school and university and graduated in Australia and that she has two Australian citizen siblings who live in Australia and they visit each other. However, other than the ATO assessment for 2010, there is no evidence that the visa applicant was employed or had business ties in Australia.  Neither is there any independent evidence- that she was employed by an Australian company overseas or that any of her employment or business activities were or could be of benefit to Australia.  The Tribunal is not satisfied that the visa applicant’s employment or business activities or her relationship with her siblings amounts to substantial personal or business ties to Australia that are of benefit to Australia. Although the visa applicant previously stated that it is her intention to return to live in Australia, even considering the recent travel restriction as a result of the COVID-19 pandemic, the visa applicant has lived in Jakarta for a substantial time. In the 10 years before the visa application was lodged the visa applicant had spent 174 days in Australia.  The visa applicant lived outside of Australia for the remainder of the time in those 10 years. She ran a business and married and continued to live her day-to-day life in Indonesia. There is no evidence that the visa applicant was a participating part of the Australian community and economy or that she had any assets in Australia during the relevant time.

21. Accordingly, the Tribunal is not 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. Therefore, the visa applicant does not meet cl.155.212(3) of Schedule 2 to the Regulations.

22. As the visa applicant was not in Australia at the time the visa application was lodged, she does not meet cl.155.212(3A) of Schedule 2 to the Regulations.

    Does the applicant meet the family member criterion?

23. Clause 155.212(4) requires that 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 cl.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.

24. There is no evidence that the visa applicant was a dependent of her parents’ family unit. At the time the visa application was lodged the visa applicant was 32 years old and running the family business, as such she is no longer considered to be dependent on her parents. Accordingly, the applicant does not meet cl.155.212(4) of Schedule 2 to the Regulations.

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

    Subclass 157 Three Month Resident Return

    Criteria to be satisfied at the time of application

26. Clause 157.212(1) of Schedule 2 to the Regulations requires that, a visa applicant meets the requirements of cl.157.212 (2) or (3) of Schedule 2 to the Regulations.

27. Clause 157.212(2)of Schedule 2 to the Regulations requires that the visa applicant 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 visa applicant: was the holder of a specific visa or an Australian citizenship and if outside of Australia had compelling and compassionate reasons for her last departure from Australia.

28. As detailed in the delegate’s decision record at the time the visa application was lodged, the visa applicant was outside of Australia and in the 5 years immediately before the visa application was made the visa applicant had been in Australia for 174 days.  Therefore, the applicant has less than 2 years presence in Australia during the relevant time.

29. The evidence before the Tribunal is that the visa applicant departed Australia in June 2017 to resume her work commitments in running the family business and to resume living with her husband.  

30. The Tribunal accepts that the visa applicant 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. At the time of visa application, the visa applicant last departed Australia on 11 June 2017- to resume her normal life of running the family business that she had been running since 2011. She returned to resume living her day-to-day life with her husband. The Tribunal is not satisfied that the visa applicant had compelling and compassionate reasons for her last departure from Australia. It is of the view that the visa applicant’s reason for her last departure was to resume her normal life. Therefore, the visa applicant does not meet cl.157.212(2) of Schedule 2 to the Regulations.

31. Clause 157.212(3) of Schedule 2 to the Regulations requires that the visa applicant is a member of the family unit of a person who:  has been granted a Subclass 157 visa and that visa is still in effect; or meets the requirements of subclause (2) and has lodged a separate application for a Return (Residence) (Class BB) visa.

32. There is no evidence before the Tribunal that the applicant is a member of the family unit of a person who has been granted a Subclass 157 visa and as determined above the visa applicant does not meet the requirements of subclause (2). Therefore, the visa applicant does not meet cl.157.212(3) of Schedule 2 to the Regulations.

33. Clause 157.213 of Schedule 2 to the Regulations requires that, if the applicant was outside of Australia, the visa applicant has not been absent from Australia for a continuous period of more than 3 months immediately before making the application for the visa, unless there are compelling and compassionate reasons for the absence.

34. The evidence before the Tribunal is that at the time of visa application, the visa applicant last departed Australia on 11 June 2017 and did not return to Australia prior to the application for the visa which was lodged on 14 December 2017. The Tribunal finds that the applicant was absent from Australia for a continuous period of more than 3 months immediately before making the visa application. As detailed above, during the relevant time, the visa applicant has been absent from Australia to run the family business and to continue her marriage with her husband. The Tribunal finds that the visa applicant’s absence from Australia was to live her normal life including running the family business which she has done since 2011 and to marry in 2015 and live with her husband. The Tribunal is not satisfied that these circumstances are compelling and compassionate reasons for the visa applicant’s absence from Australia. Therefore, the visa applicant does not meet cl.157.213 of Schedule 2 to the Regulations.

35. There is no evidence before the Tribunal that the applicant satisfies any of the alternative criteria for the grant of the visa.

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

    DECISION

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

    Helena Claringbold
    Member