HE (Migration)

[2017] AATA 604

HE (Migration) [2017] AATA 604 (6 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANTS:  Mr Meng Liang HE

VISA APPLICANT:  Ms Miu Ling LEE

CASE NUMBER:  1610821

DIBP REFERENCE(S):  01017010

MEMBER:Glynis Bartley

DATE:6 April 2017

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 6 April 2017 at 3:33pm

CATCHWORDS

Migration – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – cl 155.212 – No substantial ties that are of benefit to Australia – Review applicant employed in specialized field – Plans to retire to Australia – Relocation to Australia unplanned

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2 cl 155.212

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in the present case is whether the visa applicant, Ms Miu Ling Lee, meets cl.155.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant Ms Lee a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (the Act).

3. Ms Lee applied to the Department of Immigration for the visa on 24 May 2016. 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 Regulations. Relevantly to this case, they include cl.155.212.

4. The delegate refused to grant the visa on 2 June 2016 on the basis that Ms Lee did not meet cl.155.212. The delegate concluded that Ms Lee had spent a total of 77 days in Australia in the past five years. The delegate was not satisfied that Ms Lee had substantial business, cultural, personal or employment ties with Australia which are of benefit to Australia. The delegate also found that Ms Lee did not meet the requirements for the grant of a Subclass 157 visa because there were no compelling and compassionate reasons for her last departure from Australia.

5. On 18 July 2016 Mr He lodged an application for review of the decision with this Tribunal.

6. Mr He appeared before the Tribunal on 22 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Lee, Mr Bo Qi He and Mr Dillon Bai An He. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese language.

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

   BACKGROUND

8. Mr He is a 74-year-old Australian citizen by grant. He has been living in Hong Kong since 2006 and is employed as a teacher, actor and director of traditional Chinese theatre. Mr He has three adult sons from a previous marriage, all of whom live in Australia.

9. Ms Lee is a 72-year-old national of China. Ms Lee has two adult daughters from a previous marriage who live with her and Mr He in Hong Kong. Ms Lee was granted a Subclass 100 Partner visa on 6 May 2006 on the basis of her relationship with Mr He. That visa ceased on 6 May 2011. Ms Lee was granted a Subclass 155 (Five Year Resident Return) on 9 May 2011, which ceased on 9 May 2016. She travelled to Australia on three occasions on the Subclass 155 visa. Ms Lee returned to Australia on 21 March 2017 after being granted an Electronic Travel Authority visa (subclass 601), which is valid until 21 June 2017.

10. Prior to the hearing, Mr Dillon Lee provided a statement which set out the personal histories of his father and step-mother and submissions regarding Ms Lee’s ties with Australia.

    TRIBUNAL HEARING

    Mr He’s oral evidence

11. Mr He gave oral evidence that he and Ms Lee returned to Australia yesterday to attend the hearing. Ms Lee travelled on a Tourist visa and they intend to stay for two months.

12. Mr He said he is employed as a teacher at the Hong Kong College of Performing Arts. He returned to Hong Kong in 2006 and has been employed at the college since 2007. He also runs a theatrical troupe and tutors private students. Mr He said he generally earns around AU$5,800 per month (around AUD$70,000 per annum). He has work commitments until the end of 2017 but wants to stay in Hong Kong until he is no longer able to work. Mr He said he hopes he can keep working for another 5 to 10 years as he is able to support his family through his employment in Hong Kong. Mr He said he owned a property in Brisbane but sold that before he returned to Hong Kong. Ms Lee owns some shares in Hong Kong. If they must return to Australia due to Ms Lee’s visa problem, Mr He will retire early. However, he would be unable to find similar work in Australia and would need to go on a pension.

13. Mr He and Ms Lee live in a 2-bedroom apartment that Ms Lee owns in Hong Kong. Ms Lee’s adult daughters also live in the apartment. Mr He said that Ms Lee would retain the apartment if she returned to Australia so her daughters have somewhere to live.

14. Ms Lee is also an actor and assists Mr He to run his theatrical productions. Mr He splits the profits equally with his wife. Mr He is the president of the troupe and Ms Lee is the deputy president.

15. Mr He has three adult sons, a daughter-in-law and one grandson in Australia. Mr He and Ms Lee will live with his middle son if they return to Australia. They then intend to apply for public housing. 

16. Mr He has a few friends in Australia but Ms Lee’s friends are all in Hong Kong. Ms Lee has a very close relationship with Mr He’s three sons and they treat her like their biological mother. Ms Lee’s three siblings live in China. Ms Lee does not have any cultural, business or employment ties in Australia. However, she does have personal ties to his sons.

17. Mr He told the Tribunal that he loves Australia and wants to return here when he can no longer work. His mother died in Brisbane and he wants to spend the final years of his life here. The people are friendly and it is a free country that respects human rights. Ms Lee also loves Australia because it is friendly and free. There is less population density than Hong Kong and the standard of living is high.

18. Ms Lee returned to Hong Kong with Mr He in September 2015 as Mr He had limited leave from his work.

    Ms Lee’s oral evidence

19. Ms Lee confirmed Mr He’s evidence, including that she has no business, employment or cultural ties in Australia. Ms Lee said she has personal ties to her three step-sons and their families. Ms Lee told the Tribunal that she and Mr He will return to Australia when Mr He is no longer able to work. She loves Australia and wants to be with her husband.

    Oral evidence by Mr Bo Qi He and Mr Dillon Bai An He

20. Mr He’s sons confirmed the evidence given by their father and step-mother. They told the Tribunal that they have a close relationship with Ms Lee and have regular contact with her. Mr He is getting older and cannot work in Australia. Ms Lee returned to Hong Kong with Mr He to give him support. Her decision meant that she missed the opportunity to become an Australian citizen.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Lawful presence/substantial ties

21. At the time of application, Ms Lee must meet one of the alternative requirements set out in cl.155.212. These requirements essentially relate to Ms Lee 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.

22. In this case, Ms Lee is seeking to meet cl.155.212(3). She does not claim to meet any of the other subclauses in cl.155.212. As Ms Lee was outside Australia at the time of application, she cannot meet cl.155.212(3A).

    Does Ms Lee meet the substantial ties criterion?

23. Subclause 155.212(3), as extracted in the attachment to this decision, requires that if Ms Lee is outside Australia at the time of application, the Tribunal must be satisfied that she has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.

24. Additionally, Ms Lee 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.

25. Ms Lee lodged her application in Hong Kong and was outside Australia at the time of application. She is married to Mr He who is an Australian citizen. At the time of application Ms Lee had been granted one previous Subclass 155 visa on 9 May 2011. Mr He’s son, Dillon, provided a statement which said that Ms Lee has personal ties for applying for the visa. Her spouse, Mr He, is an Australian citizen and Ms Lee has formed close relationships with her step-sons and Mr He’s grandson. Mr He is living and working in Hong Kong due to an employment opportunity there in his specialised field of traditional Chinese theatre. Due to his age and the nature of Mr He’s employment, this opportunity would not be available to Mr He in Australia.

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

26. No claims were made that Ms Lee has any business, cultural or employment ties in Australia. The Tribunal has considered whether the evidence establishes that Ms Lee has substantial personal ties with Australia which are of benefit to Australia.

27. The Tribunal accepts that Ms Lee is married to an Australian citizen and that Mr He’s three sons and grandson are also Australian citizens. The Tribunal notes the parties’ oral evidence that Ms Lee was granted a Subclass 155 visa in 2011 but has only visited Australia for brief periods since then. In his statement submitted to the Tribunal before the hearing, Mr Dillon Ba An He said that Ms Lee returned to Hong Kong on 14 June 2016 and came back to Australia with Mr He to visit family every now and again. He noted that one of the reasons for the refusal of the visa application was that Ms Lee had only spent a total of 77 days in Australia in the past five years. However, Ms Lee only had the opportunity to return when Mr He could take leave from work; generally a few weeks every two years. Working in Hong Kong, some years Mr He could not take any time off work at all. Mr Dillon Ba An He asserted that his father had decided to retire after his scheduled appointments are completed in Hong Kong and return to Australia permanently.

28. Mr He gave oral evidence that he hopes to continue working in Hong Kong for another 5 to 10 years. The Tribunal notes the evidence that Ms Lee owns an apartment in Hong Kong and neither party has any property in Australia. Mr He said that he and Ms Lee plan to live in an apartment owned by his middle son when they return to Australia. They will then apply for public housing.

29. Although Mr He’s evidence was that Ms Lee intends to live in Australia, the Tribunal is not satisfied that the parties have imminent plans to reside in Australia. The Tribunal accepts that Ms Lee and Mr He have in the past contemplated moving to Australia. However, Ms Lee has remained in Hong Kong due to Mr He’s employment. Mr He gave oral evidence that he enjoys his work and finds it financially rewarding. The parties gave consistent oral evidence that Ms Lee’s friends are all in Hong Kong. There is consistent evidence that Ms Lee has a very close relationship with Mr He’s three sons and they treat her like their biological mother. Ms Lee’s two adult daughters live in Hong Kong and her three siblings live in China. The Tribunal accepts that Mr He’s three adult sons and one grandson are all living in Australia and that Ms Lee has regular contact with them. Nonetheless, the Tribunal is not persuaded that this amounts to substantial personal ties to Australia. It is not known when the parties will relocate to Australia and it may be many years away. Mr He’s oral evidence is that he would like to continue to live and work in Hong Kong for up to 10 years if he remains in good health.

30. While the Tribunal accepts that Ms Lee has some ties with Australia, most significantly the fact that her husband and his three sons, daughter-in-law and grandson are Australian citizens, having considered the totality of evidence before it, Ms Lee has not satisfied the Tribunal that such ties, whether considered independently or cumulatively, are substantial. In reaching this conclusion the Tribunal has taken into account that Mr He has been living and working in Hong Kong for around 10 years and has no definite plans to return to Australia in the near future, apparently because of the unique nature of his employment in Hong Kong. The Tribunal acknowledges Mr He’s stated preference to continue working in Hong Kong for as long as practicable and also that he does not wish to be a drain on Australia’s social security system. However, there is no evidence to suggest that there is anything precluding him or Ms Lee from returning to Australia. One of Mr He’s sons has offered the parties accommodation and Mr He would likely be entitled to receive Centrelink income support payments.

31. The Tribunal is not satisfied that at the time of application Ms Lee had substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia. The Tribunal therefore finds that Ms Lee does not meet cl.155.212(3). As Ms Lee was outside Australia at the time of application, she cannot meet cl.155.212(3A). No claims have been made that Ms Lee meets cl.155.212(2) or cl.155.212(4). The Tribunal finds that Ms Lee does not meet cl.155.212 of Schedule 2.

32. For the reasons above, the Tribunal finds that Ms Lee does not meet the criteria for the grant of a Subclass 155 visa.

33. Clause 157.212(2)(b) requires Ms Lee to demonstrate that she had compelling and compassionate reasons for her last departure from Australia. The parties gave oral evidence at the hearing that Ms Lee returned to Hong Kong after her last trip to Australia in September 2015 because Mr He has limited leave and had to return to his employment. The Tribunal is not satisfied on the available evidence that there were compelling or compassionate reasons for Ms Lee’s last departure from Australia. Nor is the Tribunal satisfied that Ms Lee is a member of the family unit of a person who has been granted a Subclass 157 visa. The Tribunal is not satisfied that Ms Lee meets cl. 157.212(2) and cl. 157.212. Accordingly, Ms Lee does not meet the criteria for the grant of a Subclass 157 visa.

    DECISION

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

    Glynis Bartley
    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).

    …

    (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.