Fenton (Migration)

[2021] AATA 2704

Fenton (Migration) [2021] AATA 2704 (21 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gordon Stuart Fenton

CASE NUMBER:  1923508

HOME AFFAIRS REFERENCE(S):          BCC2019/2549248

MEMBER:Michael Cooke

DATE:21 June 2021

PLACE OF DECISION:  Sydney

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(3A) of Schedule 2 to the Regulations

Statement made on 21 June 2021 at 10:12am

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – substantial ties criterion – substantial personal ties with Australia – ‘of benefit to Australia’ – prescribed residency requirements – period of continued absence from Australia exceeded 5 years – ‘compelling reasons’ for waiver – decision under review remitted

LEGISLATION

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

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 Home Affairs on 8 August 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 15 May 2019. 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(3A) because he was not able to satisfactorily evidence his substantial ties with Australia.

4. The applicant has provided the Tribunal with a comprehensive submission addressing the adverse findings in the delegate’s decision record.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant has substantial ties with Australia and ‘compelling reasons for (his) absence’ of greater than 5 years.

   Lawful presence/substantial ties

8. 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.

9. In this case, the applicant is seeking to meet cl.155.212(3A). The applicant does not claim to meet any of the other subclauses in cl.155.212. As the applicant was in Australia at the time of application, the applicant cannot meet cl.155.212(3).

   Does the applicant meet the substantial ties criterion?

10. Subclause 155.212(3A) (as extracted in the attachment to this decision) 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.

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

    Findings and reasons relating to nature and extent of ties and benefit to Australia:

11. The applicant has been living in Australia with his Australian citizen partner since 2019. His submission explains his situation as follows:

    At the time of the applicant’s move to Australia his niece was living in Western Australia as a citizen, and he had re-established a relationship with his current partner, Paula. They moved in together in April 2019 and were engaged in September 2019. Paula is an Australian Citizen. They share their day-to-day responsibilities and works to support the family. They have moved the family into their own home, and they are planning to marry as soon as the Covid situation resolves as they would like her parents, who are elderly and living in Scotland, to attend the wedding. The applicant has included Paula’s daughter into his life as his own and loves spending time with his grandchildren. The couple look after the 2 babies once a week and they love the time they get to be together as a family. The couple are committed to a relationship long term and if this application is not successful, will look to lodging a partner visa for the applicant as they wish to remain together regardless of the situation as they had already lost many years in previous relationship that did not work.

    The applicant has works since being granted his work rights. He was previously employed with a non-profit organisation affiliated to the NDIS. Following the end of the contract, the applicant is now employed as an Assessor and Trainer at the Everthought College of Construction training young Australian Apprentices. The applicant has also started a small business in conjunction with is future son-in-law doing small carpentry jobs in their local area. The applicant has shown a willingness to contribute to the Australian economy and to give back in terms of skills and training. He is happy to contribute positively to the community and is willing to share years of experience with young Australians. His skill and his willingness to share his skills makes him an asset to his community.

12. Accordingly, the Tribunal is satisfied that at the time of application the applicant had ‘substantial personal ties with Australia that are of benefit to Australia’. He has now also evidenced the development of ‘business and employment ties’ since his last arrival in 2019.

    Does the applicant meet the prescribed residency requirements?

13. In addition to having substantial ties with Australia, cl.155.212(3A) requires that unless there are ‘compelling reasons for the absence’, the applicant has not been absent from Australia for a continuous period of 5 years or more since the date the applicant’s most recent permanent visa was granted or the date he or she ceased to be a citizen.

14. 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].

15. Based on the travel records of the applicant, he was in Australia from 10th of June 2007 until 30th of June 2007. Since his last departure as a holder of the BN-136 visa subclass on 30th of June 2007, the applicant was absent in Australia. After his extensive absence, the applicant returned to Australia on 20th of March 2019 as a holder of TV-651 visa subclass. The applicant is currently in Australia on a Bridging visa B (WB-020) pending the outcome of this review.

16. The Tribunal finds the applicant, therefore, does not meet the prescribed residency requirements.

    Any ‘compelling reasons for the absence’ to ground waiver of the prescribed residency requirements

17. The applicant has sought waiver of the provision due to ‘compelling reasons for (his) absence’ as follows:

    At the time of the initial application for the Skilled Visa, the applicant was married and had 2 minor children. The family resided in Scotland. The family applied for the visa, and it was granted in March 2007. In June 2007, the applicant and his family entered Australia to activate the visa with the intention of returning to Scotland to finalise business, school and to pack up their lives to move. Following their return to Scotland, the applicant’s partner at the time indicated that she was not willing to move to Australia until their son had finished school and their older son had completed an apprenticeship that he was registered for. Following the children completing their schooling, his wife was not prepared to move away from her family in Scotland at that time. The applicant remained in Scotland during this period in an attempt to work on his marriage and to convince his wife to finally move to Australia. Over the course of the years that followed, the applicant and his partner at the time had various arguments about her unwillingness to move to Australia. He continued to work toward his goal of moving to Australia. Despite his clear wishes to relocate, his partner was not willing to move away from Scotland. The applicant remained with his family and his sons subsequently finished school and moved away. The applicant and his partner finally realised that their relationship was over, and the applicant began to make plans to dissolve the relationship. During 2018, he worked away a lot and on weekends lived with his sister. The couple formally separated in January 2019 and they are now divorced. Following the formal separation in January 2019, the applicant made plans to move to Australia as he had finally been in a position to realise his dream. His sons were grown, and he had reconnected with a previous partner who lived in Australia. The move occurred in March 2019 showing that he did not hesitate to follow his dream of living in Australia once he was able to do so.

    Findings and reasons on cl.155.212(3A)

18. The applicant has presented ‘forceful’ and thus ‘compelling reasons’ for his lengthy absence based on physical, legal or moral necessity and which, by reason of their forcefulness, are convincing in the Tribunal’s view. The Tribunal is satisfied the applicant was ‘compelled’ by the reasons for his absence,

19. Given the findings above, the applicant meets cl.155.212(3A).

20. 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

21. 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(3A) of Schedule 2 to the Regulations

    Michael Cooke
    Senior 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).

    …

    (3A)The applicant meets the requirements of this subclause if the applicant is in Australia, and the Minister is satisfied that the applicant:

    (a)has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia; and

    (b)has not been absent from Australia for a continuous period of 5 years or more since:

    (i)the date of grant of the applicant's most recent permanent visa, unless there are compelling reasons for the absence; or

    (ii)the date on which the applicant ceased to be a citizen, unless there are compelling reasons for the absence.