Ghanadreh (Migration)

[2021] AATA 2706

Ghanadreh (Migration) [2021] AATA 2706 (28 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Lo'ai Ghanadreh

VISA APPLICANT:  Ms Lena Salim Elias Ghanadreh

CASE NUMBER:  1916916

HOME AFFAIRS REFERENCE(S):          CLD2019/60752514 Not Recorded

MEMBER:Michael Cooke

DATE:28 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(3) of Schedule 2 to the Regulations

Statement made on 28 June 2021 at 1:45pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – substantial ties criterion – personal ties – prescribed residency requirements – period of continued absence from Australia exceeded 5 years – ‘compelling reasons’ for waiver – ‘physical and moral necessity’ – beyond the applicant’s control – 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 4 June 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 28 March 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(3) because she has not demonstrated ‘substantial ties of benefit to Australia’ and ‘compelling reasons for her absence’.

4. The review applicant appeared before the Tribunal on 28 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant - Ms Lena Salim Elias Ghanadreh. The hearing was conducted by telephone.

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

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 can demonstrate ‘substantial ties of benefit to Australia’ and ‘compelling reasons for her (prolonged) absence’.

   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(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?

10. 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.

11. 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?

12. The Tribunal finds the applicant has family members who are Australia citizens or permanent residents. This includes her brother (the review applicant), her deceased parents and extended family. 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.

    Does the applicant meet the prescribed residency requirements?

13. 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).

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. The Tribunal finds that the applicant last departed as a permanent resident on 3 August 2000. On 8 July 2005 this visa ceased. However, on 26 April 2005 she applied in Dubai for a Subclass 155 visa to return to Australia (within the permissible time since grant). She does not know why she was refused and it left her devastated - she informs. Thus, the Tribunal finds that the period of continued absence from Australia immediately before the visa application was more than 5 years.

    Whether there are ‘compelling reasons for the absence’

16. The Tribunal has had the benefit of a comprehensive submission from the applicant’s representative where she has advanced (among other indicia) ‘compelling reasons’ for her lengthy absence from Australia. The submission reads as follows:

    Financial capacity as the sole financial provider to dependents

17. Ms. Lena Ghanadreh was the sole financial provider to her mother, Jeanette Nasri Issa Hifawi (‘Ms. Hifawi’) and her youngest brother, Mr. Lo’ai Ghanadreh at the time she was granted a Skilled Independent (Permanent) visa (subclass 136) on 8 July 2000. Both Ms. Hifawi and Mr. Lo’ai Ghanadreh were dependants on Ms. Lena Ghanadreh’s subclass 136 visa.

18. Ms. Lena Ghanadreh’s father had sadly passed away in 1992. Ms. Hifawi became a widow at 50 years of age and has since continued to live out her life as a widow as her life was only organized and devoted around her husband and children.

19. Ms. Lena Ghanadreh was unable to seek assistance from her two brothers for financial support to assist in lessening her financial burden due to their then-current circumstances. Her eldest brother, Mr. Habib Ghanadreh, married in March 2003, had his first child in September 2004 and was temporarily living abroad. Her youngest brother, Mr. Lo’ai Ghanadreh, was a full-time student who was dependent on her. Ms. Lena Ghanadreh was committed to ensuring that no matter what financial difficulties she would face that Mr. Lo’ai Ghanadreh’s life and education in Australia would not be adversely impacted.

20. By October 2005, Ms. Lena Ghanadreh’s struggle had peaked, and she could not sustain her financial responsibilities alone any longer that she had to apply for a loan that amounted to approximately AED90,000 (equivalent to approximately AUD31,800). With this amount at that time, it greatly assisted her in covering the expenses and debts that had accumulated from being the sole financial provider for her mother Ms. Hifawi and youngest brother, Mr. Lo’ai Ghanadreh.

    Ongoing health concerns of dependent

21. Following the grant of Ms. Lena Ghanadreh’s subclass 136 visa, Ms. Hifawi had suffered a few health issues which Ms. Lena Ghanadreh took care of as her primary carer. In August 2003, it began with Ms. Hifawi being diagnosed with high blood pressure. A subsequent incident occurred where Ms. Hifawi had fainted, and she hit her head due to Ms. Hifawi suffering from vertigo. Ms. Lena Ghanadreh arranged for a brain CT scan and MRI to ensure her mother had no trauma. This same year was particularly difficult for Ms. Hifawi as her father (grandfather of Ms. Lena Ghanadreh) had also passed away in Australia and she was deemed not fit to fly to attend the funeral.

22. Throughout 2006 to 2012, Ms. Hifawi continued to have regular health-related appointments to monitor her high blood pressure, infections and allergies. Ms. Lena Ghanadreh worked hard to regain her financial capacity and made every effort in ensuring that could maintain the associated medical costs that her mother was incurring for the regular appointments and treatments in Dubai, United Arab Emirates and Amman, Jordan.

23. By August 2014, Ms. Lena Ghanadreh reached a position of financially stability and her mother has continued to remain in good health overall till date as confirmed in Ms. Hifawi’s medical reports submitted to the Department.

    Refusal of previous Resident Return visa application

24. Ms. Lena Ghanadreh came to the realization that she was not in any position to move to Australia indefinitely by 8 July 2005. The additional responsibilities and expenses in taking care of her mother, Ms. Hifawi and youngest brother, Mr Lo’ai Ghanadreh took a financial hit on Ms. Lena Ghanadreh and she could not further risk her ability to provide for them.

25. Ms. Lena Ghanadreh did understand the expiry date of her multiple travel facility on her subclass 136 visa and was certainly conscious about the travel facility period that was remaining on her visa. While the travel facility on her subclass 136 visa was active, she visited the Australian Consulate-General, Dubai to enquire about extending her travel facility period as it was clear that moving to Australia by 8 July 2005 was not feasible due to her circumstances.

26. Ms. Lena Ghanadreh recalls explaining her circumstances to the Consulate Officer and she was rest assured that the Resident Return application visa process would be relatively easy and provided her details on how to apply. In light of this positive interaction with the Consulate Officer, Ms. Lena Ghanadreh applied for a Resident Return visa (subclass 155) on 26 April 2005 in her personal capacity while her travel facility was still active on her subclass 136 visa. To her surprise, the Resident Return visa application was refused on 12 May 2005.

27. Ms. Lena Ghanadreh could not comprehend how her application could be refused, especially when her brother and dependent, Mr. Lo’ai Ghanadreh, was studying and living in Australia at the time of her application.

28. As a result of this refusal in May 2005, Ms. Lena Ghanadreh had lost confidence in her ability to relocate to Australia as a permanent resident. She was devastated and this experience discouraged her from applying for a review on that decision. Additionally, with no valid visa to return to Australia as a permanent resident, Ms. Lena Ghanadreh was not able to have spent a significant time in Australia at the time her second Resident Return visa application was lodged on 28 March 2019.

29. In reference to the comparative cases described earlier in this submission, we would like to note that Ms. Lena Ghanadreh made her first application for a Resident Return visa before her multiple travel facility ceased on 8 July 2005 and was refused a Resident Return visa. In comparison, Client C for instance made his first application for a Resident Return visa after 11 years and 8 months of being granted his subclass 136 visa, had no substantial business ties, cultural ties, employment ties or personal ties with Australia, which are of benefit to Australia, and was granted a Resident Return visa.

30. In Ms. Lena Ghanadreh’s current situation, there are no alternative visa subclasses that sh ecan consider applying for other than a Resident Return visa as her intention is to relocate to Australia on a permanent basis. The Department’s website indicates that after a five-year multiple travel facility expires, the permanent resident would need to apply for and be granted a Resident Return visa to re-enter Australia as a permanent resident. Any attempt to re-enter Australia on a temporary visa (such as a Visitor visa) would not be an appropriate for Ms.

31. Lena Ghanadreh as she would not be considered a genuine visitor and her intention would not be to stay in Australia temporarily.

32. It is with Mr. Lo’ai Ghanadreh’s persistence and encouragement, that Ms. Lena Ghanadreh began to explore her options on how to return to Australia as a permanent resident once again.

    Findings

33. The applicant (like many dutiful daughters) has found herself in the situation where family situations ‘beyond her control’ have intervened to disrupt her erstwhile life plans. In her case it was making a new home in Australia. Initially it was her mother’s health. Along the way the need to be the financial support for her brother - created a further burden. Her selflessness has, unfortunately, had significant negative repercussions. She has put herself before others and has (in the Tribunal’s opinion) evidenced ‘forceful’ reasons for her lengthy absence. These involve ‘physical and moral necessity’. It should not be forgotten that she has also been hampered by inexplicable and adverse decisions - not to mention previously incompetent advice. These factors have combined to upset her further and led to her deflection from her original plans to relocate to Australia. Despite all these travails and distractions, she has re-engaged with her dream and now seeks to regain her permanent residency.

34. The Tribunal is satisfied that the visa applicant has advanced ‘compelling reasons’ that are not only ‘forceful’ but convincing reasons to ground waiver of her lengthy absence.

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

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

37. 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

38. 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(3) 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).

    …

    (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.