Hayman (Migration)

[2018] AATA 904

Hayman (Migration) [2018] AATA 904 (19 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Stanley Albert Hayman
Mrs Anne Marion Hayman

CASE NUMBER:  1616030

DIBP REFERENCE(S):  BCC2015/3399157

MEMBER:Saxon Rice

DATE:19 March 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) Subclass 893 visas.

Statement made on 19 March 2018 at 12:09pm

CATCHWORDS
Migration – Business Skills (Residence) (Class DF) visa – Subclass 893 (State/Territory investor) – Period of residence in sponsoring State – Ongoing investment in Australia – Movement of all finances and possessions – Ministerial intervention requested

LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2 cl 893.212

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 29 September 2016 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 893 visa under s.65 of the Migration Act 1958 (the Act).

2. The primary visa applicant (the applicant) applied for the visa on 18 November 2015.

3. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant met cl.893.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant met the residence requirements for the visa.

4. The applicants appeared before the Tribunal on 14 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Michael Winter, a close friend of the applicants.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   BACKGROUND

7. The applicants are citizens of South Africa. Mr Hayman is a qualified Architect and Mrs Hayman is qualified as a teacher and has an Honours Degree in Fine Art.

8. Mr and Mrs Hayman have spent considerable time in Australia since 1980 as they have numerous friends and close family members who are Australian citizens and Mrs Hayman’s mother also became an Australian citizen by descent on 22 February 2008. Both Mr and Mrs Hayman’s sons attended Australian universities (as full-fee paying international students) and gained qualifications in Economics and Architectural Science respectively.

9. Mr and Mrs Hayman provided a submission to the Tribunal on 7 March 2018[1] and stated that their family unit had been considering migration to Australia for a long time. They stated that the deteriorating safety and political situation in South Africa was their strongest motivation towards relocation. They intended to relocate as a family unit consisting of Mr and Mrs Hayman, their two sons and Mrs Hayman’s mother who was already an Australian citizen but elderly and resident in Durban, South Africa.

   [1] T1, ff, 21-27.

10. The applicants state in their submission that due to the complexity of the migration process and documents, they decided at the outset to appoint a specialist migration agent and qualified attorney, to handle all migration matters on their behalf as they said they could not afford an error and wanted to ensure compliance at all times.

11. The applicants were granted a Subclass 165 visa on 13 October 2011. The applicants first arrived in Australia following the grant of their Subclass 165 visas on 11 November 2011 and after this time, took all necessary steps meet the criteria of the ultimate Subclass 893 visas, including making the required investment of $750,000 in Queensland Government Bonds as Queensland was the sponsoring State for the application for the Subclass 893 visas.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Residence requirement

12. In order to satisfy cl.893.212, at time of application, the applicant must have resided in the sponsoring State/Territory as a subclass 165 visa holder for at least 2 years in the 4 years immediately prior to visa application. In order to satisfy this criteria, there is no requirement of continuous stay on any one visit and the aggregate period may be composed of any number of shorter visits.

13. The issue in the present case is the period of time the applicants resided in their sponsoring State of Queensland prior to the visa application. As outlined in the delegate’s decision which the applicants provided to the Tribunal, the delegate considered the department’s movement database and made the following assessment:[2]

    As this application was lodged on 18 November 2015, the applicant is required to have resided in the sponsoring State/Territory for at least 2 years (730 days) between 18 November 2011 and 18 November 2015.

    Information from the Movement Reconstruction Data Base show s that the applicant spent a total of 644 days cumulatively in Australia between 18 November 2011 and 18 November 2015, which is less than 2 years.

    [2] T1, f, 3 (reverse).

14. On 7 March 2018, the applicant’s representative provided a submission to the Tribunal regarding these matters. As outlined above, separately, the applicants also provided a submission to the Tribunal on these and other matters. Both submissions included a claim that the applicants should be credited with an additional number of days of residence in Queensland on the basis of a cruise the applicant’s took, largely in Australian waters. However, both submissions differed in relation to the dates and total number of days the applicants had actually been in Australia.

15. Regardless of the addition of days to the applicant’s period of residence in Australia prior to the application for the Subclass 893 visas, the applicants’ oral and written evidence is that they accept that the total number of days they ‘resided in the sponsoring State/Territory’ was less than the required 730 days by approximately 2 months.

16. Mr and Mrs Hayman demonstrated in their submission to the Tribunal dated 7 March 2018 that they were very aware of the requirement that they were required to be in Australia for a 2 year period (730 days) in the 4 year period prior to the visa application. This is particularly demonstrated in an email Mr Hayman wrote to his family on 3 April 2013 in which he specifically discussed the calculation of days required for the grant of the visa and the need to be accurate to ensure that the criteria is met.[3]

    [3] T1, f.27.

17. However, Mr and Mrs Hayman’s submission states in a meeting with their migration agent on 2 December 2013, a ‘gross misunderstanding’ occurred between them and their migration agent regarding the necessary residence requirements as follows:[4]

    We attended a meeting at Letitia’s Southport offices on 02.12.2013. A whole brace of issues were discussed such as possible facilities for Anne’s mother and the relocation of her to Australia, the possibility of staying closer to our sons in Sydney, the need to provide proof of our spending the majority of our time in Queensland, our progression towards PR and citizenship etc. Critically, our plan to achieve the 730 days in 4 years was discussed. We firstly discussed the cruise situation as noted previously. … We then noted to Letitia that we would be attending my nieces wedding in Wanganui, NZ, during March 2014 as well as a necessary trip back to South Africa. Letitia clearly stated that as with any Australian we are entitled to travel during this period and we would still meet the requirement. Stan repeated to Letitia what she had just said. Her response was along the lines of “Stan, you’re not listening to me, I said that you are both quite entitled to travel outside of Australia, just like any Australian, without compromising your 2 year requirement”. Stan then offered Letitia a copy of the 03.04.13 email (copy attached). She did not want a copy. Stan again offered it for her record purposes but she again declined. We were obviously thrilled with this information as it took the pressure of tight time constraints off our movements whilst we still understood we were being compliant. Regrettably this situation, or gross misunderstanding, has resulted in all of our problems. Stan and Anne are fully prepared to undergo a lie detector test, at our expense, in order to confirm the above statements. We have no doubt that Letitia will view this as a misunderstanding. Correspondence at the time clearly highlights our shock and distress.

    [4] T1, f, 23.

18. Mr and Mrs Hayman provided evidence that they subsequently sent multiple emails to their migration agent asking for confirmation that they were complying with the requirements of DIAC which indicates that they had every intention of complying with the residence requirements.

19. During the Tribunal hearing, Mr Hayman told the Tribunal that it was his firm understanding that following the meeting with his migration agent on 2 December 2013, the residence requirement would be met by demonstrating that he and his wife ‘were resident’ or ‘maintained a residence’ in Queensland for at least 2 years in the 4 years prior to the visa application rather than (as he previously understood) that they had to physically be present in Australia for at least 2 years in the 4 years prior to the visa application.

20. As a result, Mr and Mrs Hayman explained that they spent longer than they would have otherwise in New Zealand for their niece’s wedding in order to see family and they spent longer on return visits to South Africa in order for Mr Hayman to wind up his architectural business and to support Mrs Hayman’s mother who had been moved into a home for the elderly and there was a concern about possible sub-standard treatment (amongst other matters attended to). Based on the evidence Mr and Mrs Hayman provided at the Tribunal hearing, the Tribunal is satisfied that if the applicants’ understanding of the residence requirements remained as they originally understood, they would have ensured that they were present in Queensland for at least 730 days.

21. In relation to the different dates and days calculated in the applicant’s representative’s submission to the Tribunal, the applicant’s representative told the Tribunal that she got it wrong.

22. While it is evident to the Tribunal that the applicants had every intention of meeting all necessary criteria for the grant of the visa (and they believed they were doing so which caused them to close Mr Hayman’s business in South Africa and divest all property and possessions in order to permanently migrate to Australia), there is no discretion available to the Tribunal in relation to this criteria.

23. Accordingly, the Tribunal finds that the applicants did not reside in Queensland for at least 730 days prior to the visa application.

24. Therefore, the requirements of cl.893.212 are not met.

    Ministerial intervention

25. The applicants and their representative have requested the Tribunal to refer the case to the Department for consideration by the Minister pursuant to s.351 of the Act, which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to them, if the Minister thinks that it is in the public interest to do so.

26. The Minister has issued guidelines explaining the circumstances in which they may wish to consider exercising their public interest powers under s.351 of the Act. Those guidelines indicate that the Minister will generally only consider exercising their public interest powers in cases which are referred to the Department by a review tribunal or which exhibit one or more of a number of unique or exceptional circumstances, including strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

27. It was submitted on behalf of the applicants that strong compassionate circumstances, as described above, are present in their case. Mr and Mrs Hayman have invested considerable financial and emotional resources in making this visa application over a long period of time. At all times (and other than the residence requirement outlined above) they have complied with all visa requirements and demonstrated a history of being very aware of their obligations and intent to meet all immigration requirements.

28. The Tribunal also notes that Mr and Mrs Hayman’s son, Craig, is now an Australian citizen and Australian passport holder. As outlined above, Mrs Hayman’s mother (deceased) was an Australian citizen by descent as her parents were born in Queensland. Mrs Hayman is effectively a fourth generation Australian after her great grandparents migrated to Australia in 1855. Mrs Hayman’s sister lives in Queensland and Mrs Hayman has extensive wider family members living in Australia.

29. Mr Hayman is a highly experienced Architect in South Africa of some 30 years standing, including running his own company. His career highlights include being the architect for the (then) largest shopping mall in the southern hemisphere near Durban, Gateway Theatre of Shopping. As outlined above, Mr and Mrs Hayman made a considerable financial investment in Queensland Government Bonds prior to the application for the visa. Mr and Mrs Hayman own their home in Noosa and Mr Hayman indicated to the Tribunal that subject to certainty regarding his status in Australia, given his son is also now a qualified Architect, he has considered establishing an architectural business in Australia with his son in which he can continue to consult in this area. Given Mr and Mrs Hayman’s significant financial means, the Tribunal considers this ongoing investment in Australia as a likely proposition which will bring benefit to the Australian economy.

30. Since being in Australia, Mr and Mrs Hayman have thoroughly integrated into the Australian lifestyle and community. They are members of numerous clubs, sports groups, societies and are members of Probus. In addition, Mrs Hayman, together with a group of her friends has been making patchwork quilts that are distributed to female victims of domestic violence in Australia and Malaysia.

31. Given the obvious lengths the applicants went to in order to ensure that they addressed all necessary criteria for the visas, including overcoming a range of administrative issues related to proof that the necessary investment of funds had been made which required an extra personal trip from South Africa to Australia, it is apparent to the Tribunal that the applicants have been poorly advised and communicated with by their migration agent in relation to the residence requirements of the visa. Other than Mr Hayman’s pension, the applicants have nothing to return to in South Africa as they moved all possessions and considerable finances to Australia in anticipation of the visas.

32. Having regard to the applicants’ circumstances, in particular the strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian family unit and having considered the ministerial guidelines relating to the Minister’s discretionary power under s.351, set out in the Department’s Procedures Advice Manual (PAM3), the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention. The Tribunal respectfully recommends that the Minister exercises the powers pursuant to s.351 of the Act with regard to both the first and second named applicants.

    DECISION

33. The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) Subclass 893 visas.

    Saxon Rice
    Member