Gieules Neugnot (Migration)

Gieules Neugnot (Migration) [2021] AATA 350 (7 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Laure France Gieules Neugnot
CASE NUMBER:  1914239
HOME AFFAIRS REFERENCE(S):          BCC2019/1072380
MEMBER:Hugh Sanderson
DATE:7 January 2021
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 07 January 2021 at 1:29pm
CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – substantial business, cultural, employment or personal ties of benefit to Australia – multiple historical visits – non-dependent siblings resident in Australia – permanent resident status ceased when a child – compelling reasons for remaining outside Australia – shared responsibility for a step-daughter in France – importance of the applicants to their employers – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 155.212

CASES
Lorenzo Paduano v MIMIA [2005] FCA 211
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 May 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).
The applicant applied for the visa on 1 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).
The delegate refused to grant the visa on the basis that the applicant did not meet cl.155.212(3A) because the delegate was not satisfied the applicant had substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia and was not satisfied there were compelling reasons for the applicant’s absence from Australia since she last held the right to reside permanently in Australia.
Background
The applicant is a citizen of France and is currently 53 years old. She is married to Eric Neugnot who is not a party to these proceedings. She has three siblings, Eric currently 57 years old, Celine currently 50 years old, and Denis currently 48 years old. All her siblings reside in Australia and are Australian citizens. Celine and Denis were born in Australia and Eric became an Australian citizen in 2006.
The applicant first arrived in Australia as a two-year-old with her parents and older brother in 1969. The applicant and her parents departed Australia on 21 July 1974. The applicant’s right to reside permanently in Australia ceased on 13 June 1977. Since then, she has travelled to Australia as follows:
·From 11 January 1999 to 3 February 1999;
·From 13 November 2000 to 4 December 2000;
·From 25 November 2009 to 10 December 2009;
·From 20 February 2012 to 11 March 2012;
·From 24 December 2014 to 1 December 2018, being granted the Subclass 457 visa over this period; and
·From 11 December 2018.
The applicant’s parents visited Australia at the same time as the applicant in November 2009 for about two months. The applicant’s father returned to Australia for a visit in November 2019, departing Australia in February 2020.
The applicant entered Australia on 24 December 2014 on a Subclass 651 Electronic Visitor visa. She and her husband then applied for and were granted on 6 July 2015 a Subclass 457 Temporary Work visa. The current application was made on 1 March 2019. Her husband is not included in the application. He was granted a Subclass 482 Temporary Skill Shortage visa on 19 August 2019.
The applicant provided a variety documents in support of the application. This included the following:
·Newspaper clippings with regards to her parents’ activities in Australia between 1969 and 1974;
·Evidence of her siblings residing in Australia and Australian citizenship;
·Photos of the applicant with her siblings and other family members in Australia; and
·Statements in support of the application.
The applicant claimed that after meeting her husband in 1997, they were married in 2001. As he had a child from a prior relationship, they were not able to leave France so that he could continue seeing his child. They started a business in 2002 which was successful. They decided to sell the business in 2013 and start living in Australia. They sold their business in December 2014.
The applicant’s agent provided submissions where he claimed the following:
·When the applicant left Australia with her parents in 1974 and when her permanent resident status ceased in 1977, she was too young to be able to make up her own mind as to what she wished to do;
·The applicant could not then return to Australia as she had family commitments with her husband who had shared custody of his daughter and she was involved in their business;
·Since being able to travel herself, the applicant has returned to Australia many times to attend weddings and other social activities with her siblings in Australia;
·The applicant has two brothers and a sister who reside in Australia;
·The applicant has a current full-time job working for an interiors company; and
·The applicant’s husband is working as a chef which has allowed the applicant and her husband to be granted the Subclass 457 visa.
The delegate who considered the application noted the following:
·The applicant last departed Australia while holding the right to permanent residence in Australia in 1974, 45 years prior to the current application;
·The applicant’s siblings, who reside in Australia, are not dependent upon the applicant and she is not dependent upon them and so cannot be considered members of her family unit;
·There is no other evidence of any substantial personal ties the applicant has with Australia;
·The applicant was currently employed on the basis of her being granted a Subclass 457 Temporary Work visa;
·As the applicant turned 18 years of age in 1985, there are no compelling reasons why the applicant remained outside Australia if she had any desire to reside in Australia until she met her husband and married him in 2001;
·The applicant’s reasons for remaining overseas were not compelling, but merely a decision made by the applicant of her personal choice; and
·The times the applicant did travel to Australia prior to 2015 were on Electronic Travel Authority (Visitor) visas and were only for a short duration.
Based on these findings, the delegate was not satisfied that the applicant had substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia. Further, the delegate was not satisfied there were compelling reasons for the applicant’s absence since she last held the right to reside permanently in Australia. Accordingly, the delegate found the applicant did not meet the criteria in cl.155.212(3A). The delegate found the applicant did not meet any of the alternative criteria and refused the application.
Information to the Tribunal
The applicant provided further information to the Tribunal including the following:
·Statement in support of the application by the applicant and her husband;
·Statements from the applicant’s siblings; and
·Letter of employment from the applicant’s husband’s employer.
The applicant appeared before the Tribunal by telephone on 10 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, brothers and employer. The applicant was represented in relation to the review by her registered migration agent.
The applicant provided details of where she was living with her husband. She provided details of her current work and her husband’s work. She provided details of her siblings’ circumstances including details of how long they had been living in Australia.
The applicant said that when she finished high school, she did a two-year course at university. She was then working for about three years when she met her husband who she married in 2001. At that time, her husband’s daughter was only two years old and her husband had a week about arrangement with his daughter’s mother to care for their daughter. They had a good working arrangement to ensure that their daughter was properly cared for and maintained a close relationship with both parents.
The applicant said that she and her husband had talked about living in Australia, however, as her husband had the responsibility to care for his daughter and the arrangements he had made with his daughter’s mother made it impossible for them to travel to Australia, they were not able to put their plans in place. She said that once his daughter was 16 years old, they believed that she was old enough not to require the presence of her father and they made arrangements to travel to and live in Australia.
The applicant said that her role with her employer is vital. She is required to do ordering and arrange the importation of goods for the business. She said that without her, it is unlikely that the business would operate in the same manner. She said that prior to her employment, another person had been employed to do the work however had left the position. She said that only herself and her boss work in the shop where she is located.
The applicant’s husband gave evidence in support of the application. He said that he been working as a head chef with his current employer for about six years. He said that the hours of work are variable and he works generally at least 40 hours each week and usually more. He said that although he currently holds a temporary work visa that it would be difficult for him to get a permanent skilled visa due to his age. He provided details of his daughter’s arrangements in the care arrangements he had for her when she was young.
The applicant’s husband stated that his role as head chef in the restaurant is vital for the organisation. This includes supervising the three other chefs, organising menus, testing food, making decisions on employing staff and generally controlling the running of the kitchen.
The applicant’s brothers gave evidence of their circumstances and the arrangements they made when they returned to live permanently in Australia. They provided evidence of the support the applicant gives to them and their families.
The employer of the applicant gave evidence in support of the application. He said that he had two businesses with the applicant based in the operation he has in Annandale. He said that the operation there involves his wife and the applicant. He said that it would be very difficult to replace the applicant in the role that she has. He said that the business specialises in French provincial furniture, and although it is not made in France, the applicant adds a degree of kudos to his business that he would find difficult to replace. He said that it would certainly cost their business to lose the applicant as an employee.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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?
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?
The Tribunal has considered whether the applicant has substantial business or employment ties with Australia that are of benefit to Australia. The applicant is employed in a shop selling French provincial furniture. The furniture is imported into Australia although it is not actually made in France. The applicant’s employer indicated that although the furniture is not made in France, the fact that it is in the French provincial style means that the applicant’s French background provides a degree of kudos to his business. The work the applicant does was previously done by another employee who is no longer with the business. The applicant has no personal investment in the business. Although the applicant’s previous work experience in international exports and imports is of benefit, there is nothing to indicate that the applicant would not be able to be replaced in her current employment, even if her particular skills would be “difficult to replace”.
The applicant’s husband is currently employed as a chef and has been granted a skilled visa to be able to work and live in Australia. This is not a permanent visa. Due to his age, it is unlikely that he would meet the criteria for the grant of a permanent visa based on his skills and employment. There is little information which would indicate that the applicant’s husband would not be able to be replaced in his employment. There is little information which would indicate that the applicant’s husband’s employment is such that it would provide a substantial tie to Australia that would be of benefit to Australia.
Overall, the Tribunal is not satisfied that the applicant has substantial business or employment ties with Australia which are of benefit to Australia.
There is little information of any substantial cultural ties the applicant has with Australia. She first arrived in Australia with her parents and brother in 1969 when she was two years old. She departed in 1974 after five years in Australia with her family. Although she attended school in Australia, this was only for a short period of time with the majority of her schooling and most of her childhood and her youth spent in France. Apart from her ties with her family, which are discussed below, there is little information which would indicate that she has any specific cultural ties with Australia. The fact that the applicant has made the application indicates she wishes to remain living in Australia and enjoys the Australian lifestyle. There is nothing to indicate that the applicant has made any contribution or participates in any particular Australian cultural institution. The Tribunal is not satisfied that the limited cultural links the applicant has with Australia supports a finding that she has substantial cultural ties to Australia which are of benefit to Australia.
The applicant’s siblings all reside in Australia. One of her siblings is currently residing in France due to personal reasons however intends to return to live in Australia when she is able. Two of her siblings were born in Australia and are Australian citizens. Her oldest brother returned to Australia in 1998 and was subsequently granted a Skilled Migrant visa. He is now an Australian citizen. The applicant’s father remains living in France. The applicant’s husband has no family or relatives who live in Australia. His daughter has visited Australia on one occasion however remains living in France.
The applicant’s siblings are all adults and have families of their own. There is nothing to indicate that the applicant’s siblings are dependent upon her for any reason. The siblings have also travelled overseas on many occasions while living in Australia, with the applicant’s sister spending extended periods of time overseas. Although the Tribunal accepts that the applicant has a close relationship with her siblings and their families, there is nothing to indicate that they are so dependent upon each other that it would provide a substantial personal tie the applicant has with Australia. At most, it might be considered that like many people, she has relatives who live in Australia who consider Australia their home.
The Tribunal notes that the applicant’s siblings in Australia have children of their own and that she is also close to these nieces and nephews. The Tribunal is not satisfied, however, that the nature of her relationship with those relatives is anything other than a normal personal tie that she has. They are not dependent upon her for any reason and there is nothing to indicate that any ties that she does have with her siblings or their children are of benefit to Australia.
The applicant has visited Australia on multiple occasions since 1999 when she was almost 32 years of age. She has returned to Australia on visitor visas on four occasions since then, remaining for periods of less than four weeks. In travelling to Australia, she was able to spend time with her siblings who live in Australia and also attend special family events such as weddings. There is nothing to indicate that she would not be able to maintain any personal ties that she has with her siblings in Australia even if she was not living in Australia. It was indicated that the parties remain in contact with their father and other family members residing in France through the internet and other communication devices. There is nothing to indicate that the applicant would not be able to continue to maintain any relationship she has with her siblings while they were living in Australia in the same manner that she has done previously. The Tribunal does not accept that if the applicant were not living in Australia, she would not be able to maintain her relationship with her siblings as she has done previously or that the personal ties that she does have with her siblings in Australia are of benefit to Australia.
The Tribunal has considered all the personal ties the applicant has with Australia including with her siblings and all the members of their family. The Tribunal has taken into account the relationships the applicant and her husband have developed both with her relatives and the wider Australian community. The Tribunal is not satisfied that the applicant has substantial personal ties with Australia which are of benefit to Australia.
The Tribunal has taken into account all the circumstances of the applicant individually and with her husband, and the business, cultural, employment or personal ties they have with Australia both individually and cumulatively. The Tribunal is not satisfied when taking into account all the circumstances of the applicant that the applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.
Accordingly, the Tribunal is not satisfied the applicant meets the criteria in cl.155.212(3A)(a).
Does the applicant meet the prescribed residency requirements?
Although the Tribunal has concluded the applicant does not meet the criteria in cl.155.212(3A)(a), the Tribunal has considered further whether the applicant would meet the criteria in cl.155.212(3A)(b).
In addition to having substantial ties with Australia, cl.155.212(3A)(b) requires that unless there are compelling reasons for the absence, the applicant has not been absent from Australia for a continuous period of five 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.

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].
The applicant last left Australia holding a permanent visa when she returned to France with her family in 1974. At that time, the applicant was only seven years old. The right she had to reside permanently in Australia ceased on 13 June 1977. The applicant did not return to Australia until 1999, holding an Electronic Travel Authority (Visitor) visa.
It was argued that as the applicant was dependent upon her parents, she did not have the independence that would have allowed her to return to live in Australia without the consent or arrangement of her parents. The Tribunal accepts this. From the time the applicant turned 18 years of age in March 1985 or at least from when she completed high school, however, the applicant would have been considered sufficiently mature and independent to determine what she wanted to do with her life. Certainly, the applicant and her husband have taken this attitude with her husband’s daughter, Deborah.
The applicant claimed that she then attended university in France and obtained employment. She claimed to have met her husband in 1997 and they were married five years later in 2002. Her husband had been in a previous relationship and had a child of that relationship, Deborah, who was born in December 1996. It was claimed that as her husband had a joint custody arrangement with Deborah’s mother for the care of Deborah that she was compelled to remain in France until Deborah was of an age where she did not need to live with her father. This, they decided, was when she turned 16 years of age.
Although it may be accepted that the applicant felt compelled to remain in Australia after she had committed to a relationship with her husband due to the care arrangements he had made for his daughter, there is a substantial period from when the applicant turned 18 years of age in 1985 until her commencing a relationship with her husband in 1997 that there does not appear to have been any compelling reason for her absence.
The applicant indicated that after completing high school she attended university and then was working. There is nothing to indicate that if she wanted to continue her studies in Australia that she would not be able to do so. When she finished her university degree, she obtained employment in France. There is nothing to indicate that she would not have been able to take steps to obtain employment in Australia or return to live in Australia at that time if she wished to do so. There is no information that would indicate the applicant was compelled to seek employment in France and not Australia if she wanted to do so.
The applicant’s younger brother, Denis, has been living in Australia since 1994. Although Denis’s situation is different to the applicant, in that he was born in Australia and has always been an Australian citizen, the fact that Denis, when aged 22, decided to return to live permanently in Australia indicates that there would be nothing which would have prevented the applicant from also making a similar decision at that time if she had wished to have done so. There is nothing to indicate that the applicant took any steps to make enquiries about her eligibility to return to live in Australia or had any intention of leaving France at that time.
The applicant’s older brother, Eric, also took steps to establish his life in Australia in 1998. This would have been at the time the applicant had just met her husband. Although Eric took steps to obtain a Skilled Migrant visa, the fact that he decided to leave France and reside permanently in Australia at that time indicates that there would have been no compelling reason why the applicant would not have been able to do the same if she chose to do so.
The Tribunal finds that after the applicant completed high school, she simply continued her life living in France. She was not compelled to remain out of Australia, she simply decided to continue her life in France, obtaining further education, gaining employment and leading her life as she wished. There were no impediments or particular reasons why she could not depart France and return to Australia if she chose to do so, however, her particular circumstances and her personal preference at the time meant that her choice was to remain living and working in France.
It may be that the applicant was not aware that there was the possibility for her to return to live in Australia. The Tribunal, however, finds that no steps were taken at that time to even investigate the opportunity of returning to live in Australia as the applicant did not have any desire or intention to leave France. This was not due to any compelling reason or requirement to care for anyone, but just a matter of a life choice.
The applicant met her husband in 1997 when she was 30 years old and 12 years after she had turned 18 years of age. As that relationship developed and they committed to living with each other, the arrangements the applicant’s husband had for the care of his daughter meant that leaving France would not be an attractive or possible option. It is noted that the parties did not commit to being married to each other until 2002, a further five years after first meeting each other. There is nothing to indicate, however, that from the time that the applicant completed high school until she decided to commit to a relationship with her husband sometime after 1997 that there was a compelling reason for her absence from Australia.
The Tribunal has considered all the circumstances of the applicant and the period of her absence from Australia since she last held a permanent visa in 1974. The Tribunal is not satisfied that, in particular, in the period from 1985 when the applicant turned 18 years of age until at least 1997 when she first met her husband, there were compelling reasons for her absence from Australia.
Accordingly, the Tribunal is not satisfied that the applicant meets the criteria in cl.155.212(3A)(b)(i).
Given the findings above, the applicant does not meet cl.155.212(3A).
For the reasons above, the Tribunal finds the visa applicant does not meet the criteria for the grant of a Subclass 155 visa. There is no information before the Tribunal which would indicate that the applicant would meet any of the alternative criteria.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.
Hugh Sanderson
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.

[2021] AATA 350

7 January 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction