Elmaghraby (Migration)

[2021] AATA 1237

Elmaghraby (Migration) [2021] AATA 1237 (26 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Yasmine Tarek Khalil Amira Elmaghraby

VISA APPLICANT:  Ms Mona Hussein Abboud El Zomor

CASE NUMBER:  1907816

HOME AFFAIRS REFERENCE(S):          BCC2018/3984498

MEMBER:Nicole Burns

DATE:26 April 2021

PLACE OF DECISION:  Melbourne

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

·cl.155.212 of Schedule 2 to the Regulations.

Statement made on 26 April 2021 at 1:56pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – not lawfully present in Australia within five-year period before application made –compelling reasons for absence – divorce, necessity to work in home country and care for mother – substantial ties of benefit to Australia – close relationship with review applicant, her only child and Australian citizen – review applicant’s long residence outside Australia and recent return – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 155.212(3A)

CASE
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 20 February 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 25 June 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 applicant did not meet cl.155.212 because the applicant had not been 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 because the delegate was not satisfied the applicant had substantial business, culture, employment or personal ties with Australia that are of benefit to Australia.  Additionally, the delegate was not satisfied there were compelling reasons for the applicant’s absence from Australia for a continuous period of 5 years or more immediately before the application.

4. The review applicant – who is the visa applicant’s daughter - gave oral evidence to the Tribunal via teleconference on 21 April 2021.   

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant meets cl.155.212.  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.

   Was the applicant lawfully present in Australia?

7. 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.

8. In this case the delegate in their decision record indicated that the applicant departed Australia on 16 March 1991 as the holder of a permanent visa and has not returned, which was confirmed by the review applicant at hearing.  The Tribunal is satisfied the applicant was not lawfully present in Australia for a total of not less than 2 years in the period of 5 years immediately before the visa application.  Accordingly, the applicant does not meet cl.155.212(2).

9. As the visa applicant was outside Australia at the time of application, the applicant cannot meet cl.155.212(3A).

10. As there is no evidence that the visa applicant is a member of the family unit of a person who has been granted the Subclass 155 visa or who meets the requirements of cl.155.212(2), (3) or (3A) the visa applicant does not meet cl.155.212(4).

11. The visa applicant is seeking to meet cl.155.212(3), as extracted in the attachment to this decision.  This 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.  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. At the time of the visa application the applicant indicated that she has substantial personal ties in that her daughter is an Australian citizen, is her only family member, they cannot be separated, and her daughter intends to reside in Australia.  She submitted several supporting documents including a copy of her daughter’s Australian passport.  The delegate was not satisfied the applicant had substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.  The delegate accepted the applicant’s daughter is an Australian citizen (by descent) but noted that she resided in Egypt, had only been to Australia once (for five months (in 2014)), and there was no evidence of the applicant’s daughter’s imminent intention to reside in Australia. 

13. On review the review applicant contends that her mother has substantial personal ties to Australia given she is now resident in Australia and is an Australian citizen.  The review applicant provided a written statement to the Tribunal, and supporting documents including a letter from the review applicant’s general practitioner and hospital records pertaining to her late grandmother in Egypt.

14. At hearing the review applicant said she moved permanently to Australia from Egypt (where she had lived her entire life with her mother, the visa applicant, and her maternal grandmother until she died in around 2015, in Cairo) in November 2019.  Presently she lives with her father and is waitlisted for a one-bedroom unit through the Department of Housing.  She worked as a teacher and translator in Egypt and has been looking for work in Australia and will sit the NAATI accreditation test in a month’s time. 

15. The review applicant said she has always lived with her mother up until recently and they are very close.  After her maternal grandmother died in 2015, they planned to move to Australia together.  Her mother resigned from her position with the World Health Organisation (WHO) in Egypt in late 2018 and has not worked since, hoping to be able to come to Australia and seek work here.  The visa applicant owns the house she lives in in Cairo.  The review applicant said if her mother is able to come to Australia they plan to live together in rented accommodation, then possibly buy a home.  In terms of other relatives in Australia, the review applicant said she has a paternal uncle.  She said her parents are on good terms and communicate regularly however she cannot see them getting back together, despite the suggestion in her written statement provided to the Tribunal that they were going to ‘cancel’ their divorce. 

16. The review applicant said her mother last departed Australia in March 1991 when pregnant with her, to visit her mother in Cairo.  Shortly after her marriage broke down and the review applicant said her parents divorced in around 1992.  Having no husband or other family in Australia, and needing to financially support her daughter and mother, the applicant decided to stay in Egypt where she secured a job with the WHO.  The visa applicant was unable to return to Australia for any significant period of time after her daughter became independent because she was caring for her mother, up until her death in 2015. 

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

17. The Tribunal found the review applicant a credible witness and accepts her oral evidence about her and her mother’s circumstances and their plans, including to be able to live together and support each other emotionally in Australia, as they have for most of the review applicant’s life.  The Tribunal accepts the review applicant has been resident in Australia since late 2019 and that she is an Australian citizen and her mother’s only child, whom she is very close.  The Tribunal accepts the review applicant has made efforts to find housing and work in Australia and is beginning to establish her life here.  The Tribunal also accepts the applicant resigned from her long-held position with the WHO in Egypt in late 2018 with the view to move to Australia with her daughter.  Evidence had been provided in the form of copies of the review applicant’s Australian citizenship certificate, her approval for government housing in Australia, and the applicant’s resignation letter from the WHO.  The Tribunal accepts the review applicant’s evidence that the applicant plans to find work in Australia and purchase a house, if her visa is approved.

18. At hearing the review applicant spoke of her close attachment to her mother, who raised her as a single parent with no other siblings and few other relatives apart from her maternal grandmother.  Although now an independent adult, the review applicant indicated that she is still emotionally dependent on her mother and finds it difficult living without her.  Whilst her father is in Australia, who she is relatively close to and currently resides with, and an uncle, she has no further relatives here.  She is looking forward to her mother coming to Australia, so they can resume their lives residing together and supporting one another emotionally.

19. Based on this evidence the Tribunal accepts the applicant’s ties enrich the life of her Australian citizen daughter who now resides in Australia and considers them substantial personal ties.  Although the review applicant had not moved to Australia at the time of application, she was an Australian citizen with imminent plans to do so, and her close personal ties to her mother existed then, as they do now.  The Tribunal accepts the applicants would have continued to be together and support one another except for the fact the visa applicant was refused this visa.  Although the review applicant is an adult who is educated and has professional work experience, the Tribunal accepts the visa applicant’s presence in Australia to help support her emotionally including to settle into a foreign country, to continue their small but close knit family unit, would be of benefit to Australia. 

20. On the basis of the evidence before it, the Tribunal is satisfied that at the time of application the visa applicant had substantial personal ties with Australia which are of benefit to Australia.

    Does the applicant meet the prescribed residency requirements?

21. 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).

22. The visa applicant last left Australia as a permanent resident. She was continuously absent from Australia for five years or more immediately before the visa application.  The question then is whether there are compelling reasons for the absence. 

23. The delegate was not satisfied there were compelling reasons, noting the limited time the applicant had resided in Australia and finding she does not regard Australia as home.

24. 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].

25. It is submitted that the visa applicant left Australia in 1991 planning to visit her mother in Egypt then return to Australia to give birth.  However, her marriage broke down and she stayed in Egypt with her young daughter, needing to look after her and financially support her alone without relying on anyone else (which she did).  The visa applicant stayed in Egypt in the intervening years raising her daughter in a stable environment, helping her finish school and university, as well as providing financial and other support to her mother.  She purchased a home in Cairo where all three parties lived, and she worked continuously with a UN organisation to help achieve these goals.  After her mother died in 2015 the visa applicant and her daughter made arrangements to relocate to Australia.

26. The Tribunal accepts these reasons for the visa applicant’s absence from Australia.  It acknowledges the absence was considerable, amounting to around 30 years.  Nonetheless considering the visa applicant’s circumstances as a whole, it is satisfied the reasons for her absence were compelling.   She was a single mother, financially responsible for her daughter, herself and her mother: her daughter until she completed her university studies and her mother up until she died in 2015.  Only then did she and her daughter make plans to relocate to Australia.  

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

28. The Tribunal finds the applicant meets cl.155.212(3A) and therefore meets cl.155.212.

    CONCLUSION

29. 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

30. 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 of Schedule 2 to the Regulations.

    Nicole Burns

    
    

    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.