GUNATHEESAN (MIGRATION) - [2024] ARTA 129

GUNATHEESAN (MIGRATION) [2024] ARTA 129 (15 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Dr Shyamalar Gunatheesan
Visa Applicant: Dr Rubamalar Gunatheesan

Respondent: Minister for Home Affairs
Tribunal Number: 2313337

Tribunal:Senior Member A Murphy
Place:Melbourne
Date: 15 November 2024
Decision: The Tribunal sets aside the decision under review and remits the application for a Return (Residence) (Class BB) visa for reconsideration, in accordance with the order that the visa applicant meets the following criteria for a Subclass 155 (Five Year Resident Return) visa:
· cl.155.212 of Schedule 2 to the Regulations.

Senior Member A. Murphy

Statement made on 15 November 2024 at 3:32 PM

CATCHWORDS
MIGRATION –subclass 155 (Five Year Resident Return) visa – compelling reasons for the applicant’s absence from Australia – pandemic – severe illness and prolonged recovery of her mother – sister is a permanent resident in Australia – personal ties to Australia -– decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 155.212
CASES
Lorenzo Paduano v MIMIA [2005] FCA 211
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 July 2023 to refuse to grant the visa applicant a Return (Residence) (Class BB) Subclass 155 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied to the Department of Immigration for the visa on 29 June 2023. 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 which require the applicant to meet various residence requirements for the visa contained in cl 155.212(2), (3), (3A) or (4).
The delegate refused to grant the visa on the basis that the applicant did not meet cl.155.212 because she did not meet any of the criteria set out in cl 155.212(2), (3), (3A) or (4).
The review applicant appeared before the Tribunal on 14 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter be remitted for reconsideration.
Consideration of claims and evidence
The issue in this case is whether the applicant meets any of the alternative requirements set out in cl.155.212.
Lawful presence/substantial ties
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(3). As she was not present in Australia at the time of the visa application or for at least 2 years in the five years before the visa application, she cannot meet the requirements set out in cl 155.212(2) or cl 155.212(3A).
Does the applicant meet the substantial ties criterion?
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.
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?
The Tribunal accepts that the applicant is a medical professional who completed a Bachelor of Medicine at the University of Melbourne in 2006 and worked as a doctor in Australia until 2013, including in Victoria, Queensland and the Northern Territory. She remains registered as a medical professional with the Australian Practitioner Health Regulation Agency (APHRA).
As well as her Australian studies, she has completed an MBA in Health Administration and Policy at the University of Chicago and post-graduate training at the Royal College of Ophthalmologists in London, UK, while working at a hospital in Malaysia. At the time of the visa application and at the time of the Tribunal’s decision, she is working as a consultant ophthalmologist at the Tun Hussein Onn National Eye Hospital in Kuala Lumpur in medical retina, a subspecialty of ophthalmology.
While the applicant does not currently have business or employment ties to Australia, she was in making arrangements to return to Australia to undertake a Fellowship at the Lions Eye Institute in Perth, Australia in mid-2020. At that time her resident return visa was still valid, but she was unable to enter Australia in 2020 and 2021 because of the pandemic. She would still like to return to Australia to continue her work in medical retina, but her previous visa ceased in 2023 and the Fellowships that would facilitate her return require her to hold a visa. At hearing she gave evidence that Fellowships are paid positions that allow medical professionals to develop specialist skills in subspecialty areas and provide a pathway to permanent positions.
The visa applicant also has substantial personal ties to Australia, being her sister (the review applicant) and her sister’s family. The applicant’s sister and her family currently reside in Melbourne, Victoria and the applicant is godmother to her two nieces. The applicant’s sister, the review applicant, is a permanent resident of Australia and a practicing dermatologist who also completed medical school at The University of Melbourne. The applicant and her sister are close in age, visiting each other and communicating regularly. The applicant is close to her nieces and her younger sister and her family have also recently moved to Australia. Another sister also studied in Australia and holds a resident return visa, although she is currently resident in the United States of America.
The Department’s policy guidelines state that the intention of cl 155.212(3) is to give officers discretion and flexibility to grant a visa with a 1 year travel facility to applicants who have substantial ties with Australia and are contributing to Australia's well-being, but who have not spent sufficient time physically present in Australia in the past 5 years to satisfy the physical residence criterion.
The policy guidelines note that the substantial ties of benefit to Australia provision recognises that people's lives change over time and that people do spend time in other parts of the world for both personal and business reasons:
Assessments should take into account the time spent in Australia compared with the time spent overseas since commencement of permanent residence. However, factors such as the experience, skills and international contacts and reputation that people are developing while overseas and will bring back when they resettle in Australia, and the benefit this will bring into the future are also relevant considerations.
The policy also envisages that an applicant may have accepted an employment offer but not commenced work. In this case the Tribunal is satisfied that had the pandemic not occurred, the visa applicant would have taken up the Fellowship at the Lions Eye Institute in Perth, Australia and that would have been of benefit to Australia. Considered as a whole, the Tribunal is satisfied that the applicant’s long period of past residence in Australia, together with her education and employment history and her family ties to Australia, constitute substantial employment and personal ties with Australia that are of benefit to Australia.
Does the applicant meet the prescribed residency requirements?
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).
In this case Departmental movement records indicate the applicant held a permanent visa (being a resident return visa) when she last left Australia on 4 May 2015. As she was absent for a period of more than five years immediately before the visa application was made in June 2023, she will only meet the requirements of cl.155.212(3) if there are compelling reasons for her absence.
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 Tribunal has considered the applicant’s reasons for being absent from Australia since 2015 and in particular during the five years prior to the visa application, between 2018 and 2023. After completing her MBA at the University of Chicago in 2012, she returned to Australia and worked as a doctor while she tried to obtain a training position in eye medicine in an Australian hospital. When she was unsuccessful in obtaining a training position in that specialisation in Australia, she moved to Malaysia where she was able to undertake post-graduate training and sit the exams at the Royal College of Ophthalmologists in London, UK, while working in a Malaysian hospital. At the completion of that training she attained a Fellowship of the Royal College of Ophthalmologists.
After completing her final exams as an ophthalmologist in 2018, she had two years to complete a surgical logbook to demonstrate her competency. This required her to undertake a specified number of eye surgeries in particular surgical categories and this was completed in 2020. At this point she made plans to return to Australia to undertake a Fellowship at the Lions Eye Institute in Perth, Australia which was anticipated to commence in mid-2020. The COVID19 pandemic and associated border closures prevented her from taking up that Fellowship in 2020 and then again in 2021.
While borders reopened in late 2021/ early 2022, the visa applicant’s mother contracted very severe COVID in August 2021. Medical records submitted to the Tribunal show that she was admitted to ICU in Malaysia for a significant period and the applicant gave evidence at hearing about her mother’s prolonged symptoms and gradual recovery.
In considering whether such circumstances constitute ‘compelling reasons’, the Tribunal notes that Departmental policy sets out a number of examples of compelling reasons for an applicant’s absence from Australia. Relevantly to this case, those examples include:
·severe illness or death of an overseas family member;
·work or study commitments by the applicant or their partner that are of a professional nature, in circumstances where the acquired experience results in a benefit to Australia.
The Tribunal is satisfied that having finished her primary medical training and working as a doctor for several years in Australia, the applicant felt compelled to continue her post-graduate studies overseas because of the lack of opportunities to obtain a training position in ophthalmology in Australia. Those post-graduate studies and the completion of her surgical logbook were necessary for her to be recognised as an ophthalmologist, a specialisation in which she continues to work. The Tribunal accepts that the qualifications, skills and experience that she gained during her absence will result in significant benefits to Australia, should she be able to return.
It was unforeseeable that the completion of her surgical logbook and her planned return to Australia coincided with the COVID19 pandemic, with the result that she could not take up a planned Fellowship at the Lions Eye Institute in Perth, Australia in 2020. The subsequent severe illness and prolonged recovery of her mother from COVID19 complications compelled the applicant to remain in Malaysia to care for her.
The Tribunal is satisfied that the above circumstances constitute compelling reasons for the applicant’s absence from Australia. Accordingly the Tribunal is satisfied that at the time of application, the applicant meets the prescribed residency requirements.
Given the findings above, the applicant meets cl.155.212(3). As such, she meets the requirements of cl.155.212.
CONCLUSION
Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 155 visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Return (Residence) (Class BB) visa for reconsideration, in accordance with the order that the visa applicant meets the following criteria for a Subclass 155 (Five Year Resident Return) visa:
·cl.155.212 of Schedule 2 to the Regulations

Date(s) of hearing: 14 November 2024
ATTACHMENT – RELEVANT LAW
Migration Regulations 1994
Schedule 2, Part 155
…

(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.