Huang (Migration) - [2017] AATA 2917

Huang (Migration) [2017] AATA 2917 (21 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Miss Baoying Huang
VISA APPLICANT:  Mr Chujian Huang
CASE NUMBER:  1712132
DIBP REFERENCE(S):  BCC2017/1899059
MEMBER:Helena Claringbold
DATE:21 December 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant Return (Residence) (Class BB) visas.

Statement made on 21 December 2017 at 7:29am

CATCHWORDS
Migration – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – Compelling reasons for absence – Divorced – Care for sick parents – Australian citizen children
LEGISLATION
Migration Regulations 1994, Schedule 2 cls 155.212, 155.212(3), 155.212(3A), 157.212, 157.212(2)(a), 157.212(2), 157.212(3)
CASES
Cirillo v MIBP [2015] FCCA 2137
Lorenzo Paduano v MIMIA [2005] FCA 211
Paduano v MIMIA (2005) 143 FCR 204
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 29 May 2017, Mr Chujian Huang, the visa applicant, applied for a Subclass 155 (Five Year Resident Return) visa. The visa applicant’s Australian citizen daughter, Miss Baoying Huang, is the review applicant.
On 6 June 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The refusal was based on the applicant not satisfying cl.155.212 and cl.157.212 of Schedule 2 to the Migration Regulations of the Migration Act 1958 (the Regulations).
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. However in this case the delegate in this case also made a determination about Subclass 157 (Three Month Resident Return).
On 18 December 2017, Ms Baoying Huang, the review applicant appeared before the Tribunal to give evidence and present arguments. She provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Mr Huang. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Departmental case file BCC2017/1899059 folios numbered 1-144, and the Tribunal’s case file 1712132, folios numbered 1-92 and the evidence at the Tribunal hearing.
ISSUE
The issue in the present case is whether the applicant can meet cl.155.212 and cl.157.212 of Schedule 2 to the Regulations
BACKGROUND ON THE EVIDENCE
In 1971 the applicant was born in Zhaoqing Guangdong, China. He is a Chinese citizen. On 28 July 2006, he entered Australia. On 22 June 2007, he departed Australia. On 13 September 2010, he entered Australia. On 1 September 2011, he departed Australia. There is no information before the Tribunal that he has returned to Australia since that date. On 3 June 2015 and 31 May 2016, he was granted Subclass 155 (Five Year Resident Return) visas.
On 12 December 1996, the visa applicant married Ms Yihong Su (born 7 May 1975). On 18 August 2012, the marriage between the visa applicant and Ms Su ended in divorce. There are two Australian citizen daughters from this relationship, Miss Baoying Huang who was born in November 1997 and Miss Bao Wing Huang who was born in May 2007. On 27 July 2010, the visa applicant was granted a Subclass 202 - Global Special Humanitarian visa as a dependent on Ms Su, his ex-wife’s visa application.
Subclass 155 (Five Year Resident Return) visa
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 was made, having substantial ties with Australia or being a member of the family unit of a person who meets these requirements.
According to Departmental guidelines (PAM3), the purpose of the Return (Residence) visa is to facilitate the re-entry into Australia of non-citizen permanent residents, former permanent residents and former citizens and ensure that only those people who have a genuine commitment to residing in Australia, or who are contributing to Australia's well-being, retain the eligibility to return to Australia as permanent residents.[1]
[1] PAM3 - Migration Regulations - Schedules - Sch2 RRV - Resident return visas - Introduction - About resident return visas (RRVs) - Purpose (re-issue date 1/7/2016).
In this case, the applicant is seeking to meet cl.155.212(3). The applicant does not claim to meet any of the other subclauses in cl.155.212. As the applicant was outside Australia at the time of application, the applicant cannot meet cl.155.212(3A).
Does the applicant have substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia?
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.
Prior to and at the Tribunal hearing the applicant provided the following information: he ran a restaurant for about one year during 2011-2012 in Australia. Circumstances were difficult for him because his marriage with his ex-wife was failing. She didn’t assist in the restaurant and sometimes went missing. His daughter Baoying Huang was born in 1997 and Baowing Huang was born in 2007. They are Australian citizens and students in Australia. As well as running the restaurant he would also care for his daughters. His daughters in Australia are his life and he must not be separated from them. He misses them and has feelings of psychological pressure to reunite with them. His daughters visit him in China. He has been planning to return to Australia in March 2018 and live with his daughters as their father and he hopes that their minds have not been damaged.
The Tribunal is satisfied that at the time of application the applicant had substantial 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 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].
On 12 December 1996, the visa applicant married Ms Yihong Su (born 7 May 1975). On 27 July 2010, the applicant was granted a Subclass 202 - Global Special Humanitarian visa as a dependent on Ms Su, his ex-wife’s visa application. On 18 August 2012, the marriage between the visa applicant and Ms Su ended in divorce. On 1 September 2011, as a permanent resident of Australia, the visa applicant departed Australia. On 3 June 2015 and 31 May 2016, he was granted Subclass 155 (Five Year Resident Return) visas. There is no evidence before the Tribunal that the visa applicant entered Australia since his departure in September 2011. Therefore, immediately before the visa application was made, the visa applicant’s period of continued absence from Australia was more than 5 years.
Are there compelling reasons for the absence in Australia?
Where an applicant for the Resident Return visa does not meet the physical residence requirements of the Subclass 155 visa, in addition to having substantial ties of benefit to Australia, the applicant must also have not been absent from Australia for a continuous period of five years or more unless there are ‘compelling reasons for the absence’. There is no definition of the term ‘compelling reasons’ in the Regulations.
Whether a circumstance is a compelling reason is a question of fact, having regard to the proper meaning of ‘compelling’.
The Federal Court considered the meaning of ‘compelling’ in the context of a Resident Return visa in Paduano v MIMIA.[2] The Court held that the expression ‘compelling reasons for the absence’ referred to the applicant's absence and it was the applicant who must have been ‘compelled’ by the reasons for his absence. It is for the decision maker, therefore, to make a judgment as to whether the reasons for the absence are forceful (and therefore convincing) by reference to some standard of reasonableness such as a reasonable person in the same circumstances as the applicant.[3]
[2] Paduano v MIMIA (2005) 143 FCR 204.
[3] Paduano v MIMIA (2005) 143 FCR 204 at [41]. See also Cirillo v MIBP [2015] FCCA 2137 (Judge Neville, 14 August 2015). In Cirillo, the applicant claimed that he was compelled to remain in Italy for 17 years due to strong family and cultural ties and various events involving close family members. The Court held that the Tribunal erred by finding that it was not satisfied the reasons for the applicant’s absence from Australia were compelling, when it was the applicant who must be compelled. Further, the Tribunal erred in not applying the relevant standard of reasonableness as set out in Paduano.
The Court in Paduano v MIMIA further held that ‘compelling’ should not be read narrowly so as to exclude forceful reasons which raise moral necessity.[4] Equally, there is nothing which confines it to reasons incorporating an involuntary element, involving circumstances beyond the applicant’s control.[5]
[4] Paduano v MIMIA (2005) 143 FCR 204 at [37].
[5] Paduano v MIMIA (2005) 143 FCR 204 at [37].
Relevantly, the Court stated:
The ordinary meaning of the adjective 'compelling' is not confined to the meanings used by the Tribunal when it construed the legislative expression. The legislative expression is wide and unqualified. 'Compelling' in its wide, ordinary meaning means 'forceful'. Forceful reasons for an absence may involve physical, legal or moral necessity or may, by reason of their forcefulness, be convincing. There is nothing in the express wording of the relevant subclause which indicates that 'compelling', where it occurs, should be read narrowly so as to exclude forceful reasons which raise moral necessity or which are convincing. Equally, there is nothing in the express wording, or the context, which indicates that 'compelling reasons for the absence' must be confined to reasons incorporating an involuntary element, involving circumstances beyond a person's control, involving physical or legal necessity or cognate with the reasons given as examples in MSI 356.[6]
[6] (2005) 143 FCR 204 at [37].
CLAIMS AND FINDINGS
In requesting consideration against the prescribed residency requirements, both prior to and at the Tribunal hearing the applicant and Ms Huang provided information about the visa applicant’s previous marriage and his children in Australia; about his current marriage; about his parents in China and about his mother-in-law in China, for consideration as to whether, at the time of application, there were compelling reasons for the visa applicant’s absence in Australia. The claims and findings on that information are as follows:
His marriage with Ms Su was failing in Australia and this led him to being uncomfortable. His divorce from Ms Su on 18 August 2012 left him deeply hurt. Ms Huang told the Tribunal that the mental impact of her father seeing her mother with other men kept him out of Australia. While the Tribunal accepts that the breakdown of a relationship and divorce may be distressing, the visa applicant departed Australia approximately 1 year prior to the divorce with Ms Su. Immediately prior to the lodgement of the visa application, it was approximately five years since the visa applicant and Ms Su divorced. The Tribunal is not satisfied that these are compelling reasons for the absence in Australia.
His daughters in Australia are his life and he must not be separated from them. He misses them and has feelings of psychological pressure to reunite with them. His daughters visit him in China. He has been planning to return to Australia in March 2018 and live with his daughters as their father and he hopes that their minds have not been damaged. These circumstances are relevant to the visa applicant’s substantial personal ties with Australia that are of benefit to Australia which the Tribunal has determined. The Tribunal is not satisfied that these are compelling reasons for the absence in Australia.
On 28 March 2014, he married Ms Yan Liu in Zhaoqing, China. They do not have children. As detailed in the delegate’s decision record, he provided three patient record books for Yan dated March 2016, June 2016 and May 2017. He also provided household registration for Yan’s mother, who is Ms Liu, which recorded that Yan is Ms Liu’s daughter and a medical history for Ms Liu dated from 2009-2017. Ms Huang told the Tribunal that Ms Liu is elderly and unwell and her father and step-mother visit her daily. She was unsure whether Ms Liu had other children other than Yan.
In May 2017, the visa applicant stated that his absence from Australia was because he needed to care for his father, Mr Kuanfu Huang and his mother, Ms Aigu Su because they are elderly and sick in China. As detailed in the delegate’s decision record the applicant provided medical information for Mr Huang issued in 2014 and 2016 and a patient book for Ms Su issued in 2013. This information detailing results from an ultrasound showing no findings. Ms Huang told the Tribunal the visa applicant has a younger sister and a younger brother who live in the same city as the visa applicant and his parents. She stated that for the past 3 to 4 years her grandparents have lived in her uncle’s house and cared for their grandson and that they continue to care for him. She said that her uncle and his wife are not always at home because of their visits to Hong Kong and because of her uncle’s responsibilities connected to his fishery. However at other times her uncle and his wife live in the same house as her grandparents and cousin. She stated that her uncle also provides financial support to his parents. In addition, she stated that her aunt lives quite close to her grandparents and also helps out. Even if the Tribunal accepted that the visa applicant’s parents have the medical conditions as claimed, it is not satisfied that assistance to the visa applicant’s parents cannot be provided by others. On the evidence, the visa applicant’s parents live in the home of their other son and care for their grandson and have been providing their grandson with care for the past 3 – 4 years. Also on the evidence they received assistance from their other two children. The Tribunal is not satisfied that the assistance the visa applicant’s parents may require cannot be provided by others. It is not satisfied that these circumstances are compelling reasons for the visa applicant’s continued absence from Australia for the 5 years or more immediately before the visa application.
About the medical information provided for the visa applicant’s wife and mother-in-law. The information relating to his wife is dated from 2016; the information relating to mother-in-law is dated from 2009. Even if the Tribunal accepted that from 28 March 2014, the time of the visa applicant’s marriage Yan, that Yan and her mother had the medical condition claimed. The time period between the marriage to Ms Yan and the time the visa application was lodged on 29 May 2017, is a time period of 3 years and 2 months. The Tribunal is not satisfied that these circumstances are compelling reasons for the visa applicant’s continued absence from Australia for the 5 years or more immediately before the visa application.
There is no evidence that the visa applicant satisfied any of the alternate criteria for the grant of the visa.
Accordingly the Tribunal is not satisfied that at the time of application, the applicant meets the prescribed residency requirements.
Given the findings above, the applicant does not meet cl.155.212(3).
For the reasons above, the Tribunal finds the visa applicant does not meet the criteria for the grant of a Subclass 155 visa.
The Tribunal will go onto consider whether the visa applicant’s meets the criteria for the grant of a 3 Month Resident Return visa (Subclass 157) visa.
Subclass 157 - Three Month Resident Return
At time of application, an applicant for a Subclass 157 visa must meet one of 2 alternate requirements in cl.157.212.[7] The first requirement relates to physical presence in Australia and reasons for departure and the second to being a member of a family unit of a Subclass 157 visa holder.
[7] cl.157.212(1).
CLAIMS AND FINDINGS
cl.157.212(2)(a) requires that the visa applicant has 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 and also requires that the visa applicant had compelling and compassionate reasons for his or her last departure from Australia. On the evidence before the Tribunal the visa applicant did not spend any days in Australia as a permanent resident in the five year immediately before the visa application was made.
Are there compelling and compassionate reasons for departing Australia?
The applicant provided information about why he departed Australia. He stated that his marriage with Ms Su failing in Australia and this led him to being uncomfortable. The situation led to the closure of his business which he had opened and ran for approximately one year. His divorce from Ms Su on 18 August 2012 left him deeply hurt. Ms Huang told the Tribunal that the visa applicant was having marital problems and went back to China. In addition, she stated that if her uncle moved to Hong Kong there would be hardly anyone to take care of her grandparents. While the Tribunal accepts that the breakdown of a relationship and a divorce may be distressing, the visa applicant departed Australia approximately 1 year prior to his divorce from Ms Su. When he departed Australia in 2011, he left his daughter’s with Ms Su and they have lived with her since that time. As detailed in this decision record Ms Huang’s uncle, except for when he holidaying in Hong King or taking care of his fishery, continues to live in his home, with his wife, his son and Ms Huang’s grandparents who are also assisted by their daughter; when the uncle is away Ms Huang’s grandparents take care of their grandson. The Tribunal is not satisfied that the visa applicant had compelling and compassionate reasons for his departure from Australia. The applicant does not meet cl.157.212(2)(a) of Schedule 2 to the Regulations.

Cl.157.212(3) The applicant meets the requirements of this subclause if the applicant is a member of the family unit of a person who (a) has been granted a Subclass 157 visa and that visa is still in effect; or (b) meets the requirements of subclause (2) and has lodged a separate application for a Return (Residence) (Class BB) visa. There is no evidence before the Tribunal that the applicant meets this subclause.
There is no evidence before the Tribunal that the applicant satisfies any of the alternate criteria for the grant of the visa.
Given the findings above, the applicant does not meet cl.157.212(2) and cl.157.212(3) of the Regulations.
For the reasons above, the Tribunal finds the visa applicant does not meet the criteria for the grant of a Subclass 157 visa.
DECISION
The Tribunal affirms the decision not to grant the visa applicant Return (Residence) (Class BB) visas.
Helena Claringbold
Member

ATTCHMENT – 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.
Subclass 157 - Three Month Resident Return
157.1   Interpretation
Note:    Australian permanent resident is defined in regulation 1.03.
157.2    Primary criteria
Note:    All applicants must satisfy the primary criteria.
157.21    Criteria to be satisfied at time of application
157.211
The applicant:
(a)  is an Australian permanent resident; or
(b)  was an Australian citizen but has subsequently lost or renounced Australian citizenship; or
(c)  is a former Australian permanent resident, other than a former Australian permanent resident whose most recent permanent visa was cancelled.
157.212
(1)  The applicant meets the requirements of subclause (2) or (3).
(2)  The applicant meets the requirements of this subclause if the applicant:
(a)  was 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 and, during that time, the applicant:
(i)  was:
(A)  the holder of a permanent visa or a permanent entry permit; or
(B)  an Australian citizen; and
(ii)  was not the holder of:
(A)  a temporary visa (other than a Subclass 601 (Electronic Travel Authority) visa, a Subclass 773 Border visa, Subclass 956 Electronic Travel Authority (Business Entrant — Long Validity) visa, Subclass 976 Electronic Travel Authority (Visitor) visa or Subclass 977 Electronic Travel Authority (Business Entrant — Short Validity) visa held concurrently with the permanent visa or the permanent entry permit); or
(B)  a bridging visa; and
(b)  either:
(i)  has compelling and compassionate reasons for departing Australia; or
(ii)  if outside Australia, had compelling and compassionate reasons for his or her last departure from Australia.
(3)  The applicant meets the requirements of this subclause if the applicant is a member of the family unit of a person who:
(a)  has been granted a Subclass 157 visa and that visa is still in effect; or
(b)  meets the requirements of subclause (2) and has lodged a separate application for a Return (Residence) (Class BB) visa.
157.213
If the applicant is outside Australia, the applicant has not been absent from Australia for a continuous period of more than 3 months immediately before making the application for the visa, unless the Minister is satisfied that there are compelling and compassionate reasons for the absence.
157.22    Criteria to be satisfied at time of decision
157.221
If the applicant is outside Australia, the applicant satisfies special return criterion 5001.
157.222
The applicant satisfies public interest criterion 4021.
157.3   Secondary criteria: Nil
Note:    All applicants must satisfy the primary criteria.
157.4   Circumstances applicable to grant
157.411
If the application is made outside Australia, the applicant must be outside Australia at time of grant.
157.412
If the application is made in Australia, the applicant may be in or outside Australia, but not in immigration clearance, at time of grant.
157.5    When visa is in effect
157.511
Permanent visa permitting the holder to travel to and enter Australia for a period of 3 months from the date of grant.