Kwok (Migration)

[2017] AATA 610

Kwok (Migration) [2017] AATA 610 (11 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Chee Kin Kwok

VISA APPLICANT:  Ms Sou Fung Tsoi

CASE NUMBER:  1607753

DIBP REFERENCE(S):  01014139

MEMBER:Glynis Bartley

DATE:11 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 11 April 2017 at 12:04pm

CATCHWORDS

Migration – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – cl 155.212 – Substantial business, cultural, employment or personal ties to Australia – Resides in Hong Kong – Health treatment from family – Few relations in 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 Sou Fung Tsoi, 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 Tsoi a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (the Act).

3. Ms Tsoi is an 80-year-old national of China who resides in Hong Kong. She was granted a Parent visa (Subclass 103) on 10 October 1994 and Resident Return (Subclass 155) visas on 19 October 1998, 8 October 2003 and 9 February 2015. Ms Tsoi’s last departure from Australia was 21 April 2015.

4. Ms Tsoi applied to the Department of Immigration for a Resident Return (Subclass 155) visa on 11 February 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.

5. The delegate refused to grant the visa on 22 March 2016 on the basis that Ms Tsoi did not meet cl.155.212 because she did not satisfy the residency requirement or have substantial business, cultural, employment or personal ties to Australia. The delegate also found that Ms Tsoi 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. The delegate noted that Ms Tsoi had spent 36 days in Australia in the last five years.

6. On 30 May 2016 Ms Tsoi’s son, Mr Chee Kin Kwok, lodged an application for review of the decision with this Tribunal. Mr Kwok is 57-year-old Australian citizen by grant who resides in Hong Kong. He is employed as a physiotherapist. Mr Kwok provided a copy of the delegate’s Decision Record to the Tribunal.

7. Mr Kwok appeared before the Tribunal by telephone from Hong Kong on 24 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from Ms Tsoi. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese language.

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

   TRIBUNAL HEARING

9. Mr Kwok told the Tribunal that his mother lives in his apartment in Hong Kong with him, his wife and son. Mr Kwok owns two apartments in Melbourne; the second apartment was purchased in 2015 and his mother contributed half of the purchase price. That apartment is in Mr Kwok’s name, was bought off the plan and has not yet settled.

10. Ms Tsoi has one brother and a sister living in Australia. She also has siblings in Hong Kong, the United States of America and Canada. Ms Tsoi has four children, all of whom live in Hong Kong. Ms Tsoi has bank accounts in Australia and Hong Kong.

11. Mr Kwok said that his mother loves Australia and would like to return but he does not want her to live on her own. Mr Kwok said his mother has back problems and if she returned to Australia she would be a burden on the health and welfare systems if she lived alone. After the property settles in Melbourne, Ms Tsoi may return to live with her grandson.

12. Ms Tsoi returned to live in Hong Kong because Mr Kwok’s sister went through a difficult divorce and was having emotional problems. Mr Kwok told the Tribunal that his sister separated from her first husband five to six years ago and remarried around a year ago.

13. Mr Kwok said that his mother does not have any business, employment or cultural ties in Australia. She does, however, have personal ties because she has friends and family living in Australia. Ms Tsoi has two siblings, one grandson and some close personal friends in Australia. Her godson lives in Melbourne and Ms Tsoi has a close relationship with him and his wife. Ms Tsoi has contact with her brother in Sydney every few months and intermittent contact with her sister in Queensland. Mr Kwok said that Ms Tsoi has a particularly close relationship with his son in Melbourne.

14. Mr Kwok gave oral evidence that he has no plans to return to Australia in the near future. If both his sons decide to remain in Australia, the whole family may move back. Ms Tsoi returned to Hong Kong after her last visit to Australia because she was not in good health.

15. Ms Tsoi confirmed the oral evidence of her son. She said that she has family and friends in Australia and loves Australia very much. Ms Tsoi said that she has been living in Hong Kong because of her back condition. Mr Kwok is a physiotherapist and takes care of her. The apartment she purchased with Mr Kwok in Melbourne will be transferred back to her name later this year. If she can return, Ms Tsoi can live in her own home.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Lawful presence/substantial ties

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

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

    Does Ms Tsoi meet the substantial ties criterion?

18. Subclause 155.212(3), as extracted in the attachment to this decision, requires that if Ms Tsoi 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.

19. Additionally, Ms Tsoi 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 Ms Tsoi have substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia?

20. No claims were made that Ms Tsoi has any business or employment ties in Australia. Mr Kwok told the Tribunal at the hearing that his mother does not have any cultural ties with Australia. However, in his submissions received after the hearing, Mr Kwok asserted that Ms Tsoi does have cultural ties.

21. The Tribunal has considered whether the evidence establishes that Ms Tsoi has substantial cultural or personal ties with Australia which are of benefit to Australia.

22. In his submission received after the hearing, Mr Kwok asserted that his mother has participated in many functions with the Australian Consulate in Hong Kong organised by the Australian Chinese Association. Documents provided to the Department indicate that Mr Kwok was a past president of that association. The Tribunal accepts that Ms Tsoi has attended functions at the Australian Consulate in Hong Kong organised by the Australian Chinese Association but is not persuaded that this amounts to substantial cultural ties with Australia that are of benefit to Australia. No other claims were made regarding Ms Tsoi’s cultural ties.

23. Mr Kwok and Ms Tsoi gave oral evidence that Ms Tsoi’s four adult children all live in Hong Kong. She has three grandchildren residing in Hong Kong and one grandson living in Melbourne. Ms Tsoi said she jointly purchased an apartment in Melbourne with Mr Kwok, which will settle later this year. Ms Tsoi said she hopes to be able to return to Australia and live in the apartment, possibly with her grandson. Mr Kwok said that he is an Australian citizen, as are both of his sons.

24. The Tribunal accepts that Ms Tsoi has in the past contemplated moving to Australia but has remained in Hong Kong to be near her children, particularly Mr Kwok who assists her with her back pain. Although Mr Kwok said that his family may relocate to Australia if his sons ultimately decide to settle here, the Tribunal is not satisfied that Ms Tsoi has imminent plans to reside in Australia. Mr Kwok told the Tribunal that he does not want Ms Tsoi to return to Australia on her own due to her age. Mr Kwok said that his mother would be a drain on the social security and welfare systems if she returned to Australia alone.

25. The Tribunal accepts that Ms Tsoi has two siblings, one grandson and some close personal friends in Australia. Her godson also lives in Melbourne. Ms Tsoi has contact with her brother in Sydney every few months and less frequent contact with her sister in Queensland. Mr Kwok gave oral evidence that Ms Tsoi has a particularly close relationship with his son in Melbourne and the Tribunal has no reason to doubt that evidence. There was consistent oral evidence that Ms Tsoi contributed to the purchase price of an apartment in Melbourne which is in Mr Kwok’s name. The Tribunal is not persuaded that this amounts to substantial personal ties to Australia that are of benefit to Australia. It is not known when Ms Tsoi will relocate to Australia and it may be some years away. Although the parties’ evidence was that Ms Tsoi intends to return to Australia, the Tribunal is not satisfied that she has imminent plans to reside in Australia. The Tribunal considers it unlikely that Ms Tsoi will return permanently to Australia unless accompanied by Mr Kwok. Mr Kwok is working full-time as a physiotherapist in Hong Kong and there is no evidence to suggest that he has any immediate plans to retire or relocate his business.

26. While the Tribunal accepts that Ms Tsoi has some ties with Australia, most significantly that one of her sons and two of her grandsons are Australian citizens, having considered the totality of evidence before it, Ms Tsoi has not satisfied the Tribunal that such ties, whether considered independently or cumulatively, are substantial.

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

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

29. The Tribunal accepts that Ms Tsoi has not relocated from Hong Kong to Australia because Mr Kwok is employed there and he provides some assistance to Ms Tsoi due to her back condition. The parties gave oral evidence at the hearing that Ms Tsoi returned to Hong Kong after her last trip to Australia on 21 April 2015 due to her health problems. Following the hearing, Mr Kwok provided a number of medical reports. Although most of that evidence was in Cantonese, it supports that Ms Tsoi is receiving regular medical treatment. The Tribunal considers that Ms Tsoi could access appropriate medical treatment in Australia for her back condition. 

30. In her statement to the Tribunal received with the application, Ms Tsoi stated that she returned to Hong Kong because her daughter had a terrible argument with her husband and the police were called to the home. Mr Kwok gave oral evidence at the hearing that his sister separated from her husband five to six years ago and remarried around a year ago. The Tribunal is not persuaded that Ms Tsoi’s last departure from Australia was related to the breakdown of her daughter’s marriage.  

31. The Tribunal is not satisfied on the available evidence that there were compelling or compassionate reasons for Ms Tsoi’s last departure from Australia. Nor is the Tribunal satisfied that Ms Tsoi is a member of the family unit of a person who has been granted a Subclass 157 visa. Accordingly, the Tribunal is also not satisfied that Ms Tsoi meets the criteria for the grant of a Subclass 157 visa.

    DECISION

32. 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.