Elmasoglu (Migration)

[2018] AATA 989

Elmasoglu (Migration) [2018] AATA 989 (21 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nicola Jane Elmasoglu

CASE NUMBER:  1712879

DIBP REFERENCE(S):  BCC2017/1666786

MEMBER:Helena Claringbold

DATE:21 March 2018

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 March 2018 at 7:25am

CATCHWORDS
Migration – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – Spent her formative years in Australia – Visited Australia several times – Estranged father lived in Australia – No assets in Australia – De facto family in Australia – No substantial ties – Unable to meet Subclass 157 criteria

LEGISLATION
Migration Regulations 1994, Schedule 2 cls 155.212, 157.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On the 2 May 2017, Ms Nicola Jane Elmasoglu aka Nicola Jane Thomas, the visa applicant (the applicant) applied for a Return (Residence) (Class BB) visa. 

2. On 29 May 2017, a delegate of the Minister for Immigration refused to grant the visa. The refusal was based on the applicant not satisfying cl.155.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) of the Migration Act 1958 (the Act). This is a review of the delegate’s decision.

3. 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 Regulations.

4. On 12 March 2018, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Ms Patricia Whyte, Mr Alexander Whyte and Ms Kerrie Cameron. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection’s case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

7. The issue in the present case is whether the applicant can meet cl.155.212 of Schedule 2 to the Regulations.

   BACKGROUND ON THE EVIDENCE

8. The applicant was born in 1967 in Watford, in the U.K. The applicant entered Australia in 1969 and departed Australia in 1979. 

9. The Tribunal put to the applicant information under the relevant provision.  The information is that the applicant had been absent from Australia from 1979 to 2017.  The exception to this absence is when the applicant returned to Australia as the holder of tourist visas in 2009/2010 and stayed for approximately 47 days.  The next exception is in 2016 when the applicant remained in Australia for approximately 31 days. The Tribunal told the applicant that she had been absent from Australia for approximately 38 years.

10. The applicant responded and stated that this is information is correct except that in 1980 she returned to Australia and remained there for approximately six weeks.  She said she also returned to Australia in 1992 and remained here for 11 weeks.

    Does the applicant meet the requirements of cl. 155.212?

11. 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. The applicant does not claim to meet any of the other subclauses in cl.155.212.

12. In this case, the applicant is seeking to meet cl.155.212(3A) of Schedule 2 to the Regulations that requires that if the applicant is in 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. It also requires the applicant to have a particular residency history.

13. The applicant gave evidence that she was granted permanent residence and first entered Australia in April 1969 with her mother. She departed Australia in 1979.  She returned to Australia in 1980 and again in 1992.  She entered Australia again in 2009 as the holder of a visitor visa.  In October 2016 she entered Australia as the holder of a subclass 601 Electronic Travel Authority (ETA) and remained in Australia for 31 days.  In February 2017, she again entered Australia as the holder of a subclass 601 ETA and has not departed Australia since that time. The application for the visa was lodged on 2 May 2017.  In the period of five years immediately before the application was made the applicant had been in Australia for approximately 31 days in 2016 and approximately 88 days in 2017.

14. The Tribunal is not satisfied that the applicant was lawfully present in Australia for a period of, or periods that total, not less than two years in the period of five years immediately before the application for the visa. The Tribunal is not satisfied the applicant meets cl. 155.212(2) of Schedule 2 to the Regulations.

15. According to the applicant’s oral evidence to the Tribunal, the applicant was in Australia at the time the application was made. The applicant does not meet cl.155.212(3) of Schedule 2 to the Regulations. There is no evidence before the Tribunal, and the applicant does not claim, that she is a member of a family unit of a person who has been granted the Subclass 155 visa or meets the requirements for the grant of the visa and has lodged a separate application. The Tribunal is not satisfied the applicant meets cl.155.212(4) of Schedule 2 to the Regulations.

    Does the applicant meet the substantial ties criterion?

16. Sub Clause 155.212(3A) of Schedule 2 to the Regulations, requires that if the applicant is inside 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.

17. 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?

18. No claims have been made about the applicant having substantial business, cultural, or employment ties with Australia that are of benefit to Australia.?

19. In respect to the applicant’s personal ties to Australia. The evidence from the applicant is that in 1969 she entered Australia with her mother.  At that time she was a child and lived in Australia for 10 years. During those years a friendship developed between her mother and Patricia Whyte and the O’Moore family.  Patricia and her husband Alexander provided support to the applicant’s mother and took care of the applicant. So much so, that the applicant claims that that the Whytes are her de facto parents and family.

20. Patricia and Alexander told the Tribunal that, as a child, the applicant spent a significant amount of time with them. Patricia stated that the applicant’s mother was in an abusive relationship with the applicant’s father.  She said that after the applicant’s parents divorced life became difficult for the applicant’s mother. She told the Tribunal that the applicant became a member of the Whyte family.  Alexander told the Tribunal that the applicant would go on holidays and would go bush walking with their family.  Photographic evidence depicts the applicant with the Whyte family and others.

21. The applicant told the Tribunal that when she was approximately 12 years of age, she was taken back to the UK by her mother.  At that time she was told it was for a holiday however that was not the case.  The applicant was not happy in the UK and in 1980, she returned to Australia for six weeks.  It was hoped that the applicant’s father would show an interest in caring for the applicant or that the Whyte family might adopt her.  Neither of these scenarios eventuated.

22. The applicant, Patricia and Alexander Whyte and Kerrie Cameron told the Tribunal of their close relationship with the applicant.  They also told of them visiting the applicant in the UK and of the applicant visiting them in Australia.  Patricia and Alexander said that the applicant had been very helpful and had provided them both with support when they were faced with health challenges. Allison Zabel and Kerrie Cameron also gave an account of their  friendship with the applicant.

23. The applicant told the Tribunal that after her parents divorced her mother lived in the UK and her father lived in Australia.  She stated that her that her father died in late 2017.  Other information is that historically the relationship between the applicant and her father was estranged. In 2009 when the applicant visited Australia she telephoned her father. She returned to the UK and her father telephoned her fortnightly. In approximately 2015, the applicant’s father became a victim of fraud and was financially diminished. The applicant provided evidence that she recovered some of his finances.  Other information is that when the applicant was in Australia she visited her father, assisted him after he had a fall and visited him when he was in a nursing home and felt responsible for him.

24. The Tribunal considered the evidence individually and as a whole.  The Tribunal accepts that the applicant spent her formative years in Australia.  It deliberated on the evidence that the applicant had a separated life from her father and that they later connected.  It thought about her assisting her father in 2016 and 2017.  Other considerations have been given to the   friendship the applicant has with Mr and Mrs Whyte, the O’Moore family, Ms Cameron and Allison Zabel and the evidence that the applicant always considered Australia her home, has only been happy in Australia and has always wanted to return to Australia.  The Tribunal is not satisfied that these circumstances amount to substantial personal ties with Australia that are of benefit to Australia.  The applicant spent her formative years in Australia.  Since that time and her departure in 1979, the applicant has lived outside of Australia in the UK and Turkey collectively for more than 37 years. She has lived and worked in those countries, had relationships, married and gave birth to her son there. In the last 12 months she has been in Australia for approximately four months. There is no evidence before the Tribunal that the applicant has any assets in Australia. The applicant told the Tribunal that other than her de facto family, she does not have any family members in Australia, who are permanent residents or citizens of Australia. Other members of her family reside in the UK.  

25. 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 applicant does not satisfy cl.155.​212(3A)(a) of Schedule 2 to the Regulations.

26. As the Tribunal has determined that the applicant does not satisfy cl.155.​212(3A)(a) of Schedule 2 to the Regulations, it has not gone on to consider cl. cl.155.​212(3A)(b)(i) or (ii) of Schedule 2 to the Regulations.

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

28. The Tribunal will go onto consider whether the visa applicant’s meets the criteria for the grant of a Three Month Resident Return visa (Subclass 157) visa.

    Subclass 157 - Three Month Resident Return

29. At time of application, an applicant for a Subclass 157 visa must meet one of two alternate requirements in cl.157.212.[1] The first requirement relates to physical presence in Australia and reasons for departure and the second to being a member of a family unit of a Subclass 157 visa holder.

    [1] Clause 157.212(1).

    CLAIMS AND FINDINGS

30. cl.157.212(2)(a) requires that the visa applicant was lawfully present in Australia as the holder of a permanent visa or a permanent entry visa; or Australian citizen for a period of, or periods that total, not less than one day but less than two years in the period of five years immediately before the application for the visa. During this timeframe the applicant entered Australia on 29 October 2016 as the holder of a Subclass 601 Electronic Travel Authority (ETA) and the application was made on 2 May 2017. On the evidence, the visa applicant did not spend any days in Australia as the holder of a permanent visa or a permanent entry visa; or as an Australian citizen in the relevant timeframe. Therefore, the applicant does not satisfy cl.157.212(2)(a) of Schedule 2 to the Regulations.

31. As the Tribunal has determined that that the applicant does not satisfy cl.157.212(2)(a) of Schedule 2 to the Regulations, it has not gone onto consider cl.157.212(2)(b) of Schedule 2 to the Regulations criteria.

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

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

    DECISION

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

    Helena Claringbold
    Member