Gous (Migration)

[2021] AATA 106

Gous (Migration) [2021] AATA 106 (15 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Gisela Erna Helene Gous

VISA APPLICANT:  Mrs Irmgard Walli Dora Franke

CASE NUMBER:  1929132

HOME AFFAIRS REFERENCE(S):          BCC2019/4273972

MEMBER:Kira Raif

DATE:15 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 15 January 2021 at 2:45pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – not lawfully present in Australia for prescribed period before application made – compelling reasons for absence – managing, renovating and selling property in home country – age, health and entire family in Australia – no provision for grant of visa on compassionate grounds – decision under review affirmed

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

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 2 October 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 27 August 2019. The delegate refused to grant the visa on the basis that the applicant did not meet cl.155.212 because the delegate was not satisfied there were compelling reasons for the visa applicant’s absence from Australia. The visa applicant’s daughter, who is her Australian relative and the review applicant in these proceedings, seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 6 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s daughter. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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).

5. 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.

6. In this case, the applicant is seeking to meet cl.155.212(3). Subclause 155.212(3) 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.

   The requirements of cl. 155.212

7. 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).

8. 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].

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

9. The visa applicant’s daughter is an Australian citizen resident in Australia. The daughter’s family are also Australian residents. The visa applicant stated in her application that  she has no other relatives. In oral evidence the review applicant confirmed that the visa applicant’s entire family is in Australia, including her only surviving daughter and grandchildren and great-grandchildren. The Tribunal is satisfied that the presence of close family in Australia constitutes, in this case, substantial personal ties with Australia which are of benefit to Australia.

10. Accordingly, the Tribunal is 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.

    Does the applicant meet the prescribed residency requirements?

11. The visa applicant’s immigration history is set out in the primary decision record, which had been provided to the Tribunal. It indicates that the visa applicant first travelled to Australia in November 2006 as a holder of a Contributory Parent vias. She departed Australia on 10 December 2006 and again travelled to Australia in December 2008. The visa applicant last departed Australia on 4 August 2009 holding the Contributory Parent visa. The visa applicant has not travelled to Australia since that time.

12. The Tribunal is not satisfied the visa applicant was lawfully present in Australia for a period of, or periods that total, not less than 2 years in the period of 5 years immediately before the application for the visa. The applicant does not meet cl. 155.212(2).

13. As the visa applicant was outside Australia at the time of application, she cannot meet cl.155.212(3A). 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). The visa applicant is seeking to meet cl.155.212(3).

14. The information in the primary decision record indicates that the visa applicant last departed Australia as a holder of the Contributory Parent Subclass 143 visa. The Tribunal is satisfied she last departed Australia as an Australian permanent resident. The applicant has not been present in Australia since August 2009 and the Tribunal finds that she has been absent from Australia for a continuous period of 5 years or more immediately before the application for the visa. The Tribunal must consider whether there are compelling reasons for the absence.

15. In her submission which accompanied the application, the visa applicant states that she previously lived in Australia with her family between 1960 and 1965 and left Australia as her husband was head-hunted for a job in South Africa. After her husband and son passed away, she applied for Australian permanent residence to be with her daughter and she travelled to Australia in December 2008. She had to return to Germany to address issues relating to the management of her property. She experienced problems with the property manager and was struggling to sell the property and eventually renovated the units and sold these in 2018. She did not realise that her visa had expired. The visa applicant stated that she is financially independent and wants to spend her future with her daughter and daughter’s family who are her only relatives.

16. In oral evidence to the Tribunal, the review applicant confirmed the visa applicant’s immigration history set out above. The review applicant confirmed that her mother last departed Australia in 2009 as a holder of a Contributory Parent visa and in 2011 was granted her last Resident Return visa for five years. The review applicant said that her mother sold the property in 2018 and wanted to come to Australia immediately after but her application was refused.

17. The review applicant explained that her mother left Australia in a hurry because her agent in Germany was not reliable and something went wrong financially. Her mother had to travel to manage the issue. Once she decided to return to Australia, she tried to approach the High Commission for help but that help was not available.

18. The review applicant stated that it took so long to sell the property because the property was not in the city and it was difficult to sell in that area and also her mother had to save money to do things bit by bit. The review applicant said that her mother had estate agents who took advantage of her and she could not delegate the job. The review applicant said that her mother was supervising the tradespersons and overseeing the renovations project herself.

19. The review applicant explained that after the last RRV expired around 2016, her mother had a number of medical conditions and family was visiting and there were ‘little things’ that  prevented her from applying for the visa earlier.

20. The review applicant explained that after the property was sold, the visa applicant approached the High Commission but could not get help. They then made an application for the wrong visa and it took time for that process to go through before the present application was made and that explains the delay before the present application was made.

21. The review applicant also explained to the Tribunal that her mother did not have the finances to relocate to Australia before she sold the property and she wanted to be independent and would never agree to being supported by the family. The Tribunal acknowledges that the visa applicant may have preferred to be financially independent, however, the Tribunal is of the view that the family has the means to support the visa applicant, given their past ability to sponsor her for the Contributory Parent visa and their settlement in Australia. The review applicant does not dispute that the family has the means to support the visa applicant but states that the visa applicant would never agree to be reliant on someone else. The Tribunal does not consider that the visa applicant’s desire to be independent (rather than the inability to meet the financial costs of relocating to Australia) constitutes a compelling reason for the absence.

22. Generally, the Tribunal accepts that the visa applicant wished to deal with the property matters, renovate and then sell her property before returning to Australia. The Tribunal is prepared to accept that she felt the need to supervise the process. The Tribunal is not satisfied that alternative arrangements could not have been made, such as appointing an agent, which would have enabled the visa applicant to travel to Australia earlier. While the review applicant’s evidence is that an agent took advantage of her mother, there is no evidence to indicate that alternative arrangements have been explored. The Tribunal is not satisfied the visa applicant’s personal presence in her home country (and her absence from Australia) were required to renovate the property and later to sell the property and the Tribunal does not consider there were ‘compelling’ reasons for the absence. The review applicant also suggested there were health concerns but there is no documentary evidence before the Tribunal to satisfy the Tribunal that any such concerns had prevented the visa applicant’s return to Australia. Overall, while the Tribunal accepts there were reason for the visa applicant’s absence from Australia, the Tribunal is not satisfied such reasons were of such strength as to be compelling. The Tribunal is not satisfied there were compelling reasons for the visa applicant’s absence. The Tribunal is not satisfied the visa applicant meets cl. 155.212(3).

23. The Tribunal has also considered whether the applicant meets the requirements for the grant of the Subclass 157 visa. Clause 157.212(2)(a) requires the applicant to have been lawfully present in Australia for a period of, or periods that total, not less than 1 day in the period of 5 years immediately before the application for the visa. The primary decision record indicates that the visa applicant last departed Australia in August 2009 and has not travelled to Australia since that time. The Tribunal is not satisfied the visa applicant had been lawfully present in Australia for a period of, or periods that total not less than 1 day but less than 2 years in the period of 5 years immediately before the application for the visa. The visa applicant does not meet cl. 157.212(2). There is no evidence that the visa applicant is a member of the family unit of a person who has been granted the subclass 157 visa or meets the requirements of subclause 157.212(2). The Tribunal is not satisfied the visa applicant meets cl. 157.212(3) and cl. 157.212.

24. The review applicant submits that given the visa applicant’s age, having family here and not being alone in her home country is a compelling reason. As the Tribunal explained to the review applicant in the course of the hearing, there must be compelling reasons for the absence, rather than compelling reasons for the grant of the visa. The Tribunal accepts that the visa applicant has entire family in Australia. The Tribunal accepts that, given her age, the visa applicant’s and the family’s strong preference is for her to remain in Australia and the Tribunal accepts there are strong compassionate reasons for the grant of the visa. However, the legislation does not allow for the grant of the visa on compassionate grounds. The review applicant has the option of seeing Ministerial intervention where these factors may be considered.

    Conclusion

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

    DECISION

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

    Kira Raif
    Senior Member