Havea (Migration)

[2017] AATA 55

Havea (Migration) [2017] AATA 55 (11 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Kuinita Lulapau Kaihu Havea

CASE NUMBER:  1515363

DIBP REFERENCE(S):  CLF2015/66546

MEMBER:Katie Malyon

DATE:11 January 2017

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 of Schedule 2 to the Regulations.

Statement made on 11 January 2017 at 5:26 pm

CATCHWORDS

Migration – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – cl 155.212(3A) – Personal ties of benefit to Australia – Compelling reasons for long absence – Husband’s work and study commitments – Obligations to overseas family – Member of the family unit

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1958, Schedule 2, cl 155.211, cl 155.212, r 1.12

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 Immigration on 28 October 2015 to refuse to grant Mrs Kuinita Lulapau Kaihu Havea a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (the Act).

2. Mrs Havea applied to the Department of Immigration for the visa on 3 September 2015. 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).  

3. The delegate refused to grant the visa on the basis that Mrs Havea did not meet cl.155.212(3A) of Schedule 2 of the Regulations because although the delegate accepted Mrs Havea has personal ties to Australia that are of benefit to Australia (largely due to her Australian citizen children and grandchildren) the delegate was not satisfied that Mrs Havea had demonstrated compelling reasons for her 19 year absence from Australia. Nor did she meet may any of the other criteria in cl.155.212 of Schedule 2 of the Regulations.

4. Mrs Havea appeared before the Tribunal on 9 September 2016 to give evidence and present arguments.  The Tribunal also received oral evidence from Mrs Havea’s husband Dr Siotame Havea, her sister-in-law Ms Ane Havea as well as a member of the Tongan community, Mrs Ala Namoa.

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

   RELEVANT LAW

6. The criteria for a Subclass 155 visa are set out in Part 155 of Schedule 2 to the Regulations. All applicants must satisfy the primary criteria. The primary criteria to be satisfied at the time of application for a Subclass 155 visa include that the applicant is an Australian permanent resident; or was an Australian citizen but has subsequently lost or renounced Australian citizenship; or is a former Australian permanent resident other than a former Australian permanent resident whose most recent permanent visa was cancelled: cl.155.211 of Schedule 2 of the Regulations.

7. At time of application, the applicant must also meet one of the following alternate criteria in cl.155.212 of Schedule 2 of the Regulations:

   ·The applicant was lawfully present in Australia for a total of not less than 2 years in the 5 years immediately before the application for the visa and, during that time, was the holder of a permanent visa or a permanent entry permit or an Australian citizen and was not the holder of certain specified visas: cl.155.212(2); or,

   ·The applicant is outside of 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:

   ohas 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 visa applicant: holds a permanent visa; or last departed Australia as an Australian permanent resident; or last departed Australia as an Australian citizen, but has subsequently lost or renounced citizenship; or

   owas an Australian citizen, or resident, less than 10 years before the application, and has not been absent from Australia for a total of more than 5 years in the period from the date that he or she 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: cl.155.212(3); or,

   ·The applicant is in 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 has not been absent from Australia for a continuous period of 5 years or more since the date of the grant of the applicant’s most recent permanent visa, or the date on which he or she ceased to be a citizen, unless there are compelling reasons for the absence: cl.155.212(3A); or,

   ·The applicant is a ‘member of the family unit’ of a person who has been granted a Subclass 155 visa and that visa is still in effect; or a person who meets the requirements of cl.155.212(2), (3) or (3A) and has lodged a separate application for a Return (Residence) (Class BB) visa: cl.155.212(4).

8. The term ‘member of a family unit’ is defined in r.1.12 of the Regulations which provides that a person is a member of the family unit of another person (in this sub-regulation called the family head) if, among other categories, the person is the spouse or de facto partner of the family head.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant meets one of the alternative requirements set out in cl.155.212 of Schedule 2 of the Regulations as set out above.

10. Evidence before the Tribunal indicates that Mrs Havea and her husband Dr Havea each applied separately for a Subclass 155 visas on 3 September 2015 on the basis of their substantial cultural, employment and personal ties with Australia as well as the compelling reasons for their 19 year absence from Australia.  Essentially, this involved Dr Havea’s work and study commitments overseas as well as his obligations to overseas based family members.  Mrs Havea submitted that she supported her husband’s efforts in this regard.  Initially, a delegate refused each of the separate applications. 

11. The Tribunal has established that, on 25 August 2016, a differently constituted Tribunal accepted (as did the delegate) that Dr Havea has substantial personal, employment and cultural ties with Australia that are of benefit to Australia. Furthermore, the differently constituted Tribunal accepted that Dr Havea has compelling reasons for his lengthy absence from Australia. Accordingly, the Tribunal remitted Dr Havea’s application for a Subclass 155 visa with a direction that he meets the criteria in cl.155.212(3A) of the Schedule 2 of the Regulations. Departmental records indicate that Dr Havea was granted his Subclass 155 visa on 21 October 2016.

12. On the evidence before it, including information contained in Mrs Havea’s application form, Department and Tribunal files as well as the Marriage Certificate of Dr Havea and Mrs Havea and the couple’s oral evidence to the Tribunal, the Tribunal finds that Mrs Havea is married to Dr Havea and that they are in a current and ongoing married relationship of more than 38 years. The Tribunal is satisfied that Mrs Havea is the spouse of Dr Havea. It notes that the definition of member of a family unit contained in r.1.12 of the Regulations includes a spouse. The Tribunal accepts that Mrs Havea is a member of the family unit of Dr Havea.

13. The Tribunal finds that, based on evidence in the Department and Tribunal files, at the time of application for her Subclass 155 visa on 3 September 2015 Mrs Havea was a member of the family unit of Dr Havea and that Dr Havea was a person who met the requirements of cl.155.212(3A) of Schedule 2 of the Regulations and that he had also lodged on 3 September 2015 a separate application for a Subclass 155 visa. Accordingly, Mrs Havea meets cl.155.212(4) of Schedule 2 to the Regulations.

    Conclusion

14. For the reasons given above, the Tribunal finds the applicant satisfies the requirements of cl.155.212 of Schedule 2 to the Regulations.

    DECISION

15. 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 of Schedule 2 to the Regulations.

    Katie Malyon

    
    Member