Lam (Migration)

Lam (Migration) [2023] AATA 4395 (19 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Ka Keung Lam
Ms Man Ling Mona So
CASE NUMBER:  2303335
HOME AFFAIRS REFERENCE(S):          BCC2022/2519963
MEMBER:Deputy President Justin Owen
DATE:19 December 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the first-named visa applicant a Return (Residence) (Class BB) visa.
The Tribunal has no jurisdiction in relation to the second-named visa applicant.

Statement made on 19 December 2023 at 5:35pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – no substantial business, cultural, employment or personal ties of benefit to Australia – father-in-law’s and brother’s health not compelling reasons for prolonged absence from Australia – not a member of family unit of nephew – member of family unit – separate visa applications but joint review application – no jurisdiction for second applicant – no evidence that second applicant would have met requirements in any case – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12(2), Schedule 2, cl 155.212(3A), (4)
CASE
Paduano v MIMIA [2005] FCA 211
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 February 2023 to refuse to grant the visa applicant (the applicant) a Return (Residence) (Class BB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 5 July 2022. 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 (Cth) (the Regulations). Relevantly to this case, they include cl 155.212.
The delegate refused to grant the visa on the basis that the applicant did not meet either cl 155.212 or cl 157.212.
At the commencement of the Tribunal’s hearing, the Tribunal noted that the visa applications of Mr Ka Keung Lam and Ms Man Ling Mona So were two separate and distinct visa applications. The Tribunal noted that the parties had however lodged a single joint application for review with the Tribunal. The Tribunal explained that both parties should have each lodged their own individual review applications with the Tribunal. The Tribunal acknowledged that both names had been provided on their application for review, but this was in fact incorrect given each should have lodged their own application. The Tribunal adjourned the hearing in order to allow Mr Lam and Ms So to determine who was the specific applicant for this review. After the adjournment the parties stated that Mr Lam was the review applicant for the purposes of the Tribunal’s review. The Tribunal has subsequently proceeded on the basis that the applicant for review is Mr Ka Keung Lam, and it has no jurisdiction in relation to Ms Man Ling Mona So.
The applicant (Mr Ka Keung Lam) appeared before the Tribunal on 8 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Man Ling Mona So, Mr Ka Tat Lam, and Ms Wah Yuk Judy Lam Chu.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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, having substantial ties with Australia or being a member of the family unit of a person who meets these requirements.
In this case, the applicant is seeking to meet cl 155.212(4). As the applicant was in Australia at the time of application, the applicant cannot meet cl 155.212(3).
Was the applicant lawfully present in Australia?
Subclause 155.212(2) is met if the applicant was lawfully present in Australia for a total of not less than two years in the period of five years immediately before the visa application and, during that time:
·was an Australian citizen or the holder of a permanent visa or permanent entry permit; and
·was not the holder of certain specified visas.
The Tribunal noted from the decision record the applicant provided it that the applicant had not been present in Australia as the holder of a permanent visa in the five years preceding the lodgement of his visa application on 5 July 2022.
The applicant confirmed that he had not been present in Australia as the holder of a permanent visa in the five years preceding the lodgement of his visa application on 5 July 2022. The applicant confirmed he had not been in Australia as the holder of a permanent visa for at least two years of the five years preceding the lodgement of his visa application on 5 July 2022.
Accordingly, the applicant does not meet cl 155.212(2).
Does the applicant meet the substantial ties criterion?
Subclause 155.212(3A), as extracted in the attachment to this decision, requires that if the applicant is in 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. It also requires the applicant to have a particular residency history.
The applicant confirmed he was inside Australia at the time of application.
Does the applicant have substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia?
The Tribunal has considered the nature and extent of the applicant’s ties and benefit to Australia.
The Tribunal discussed with the applicant any claim to substantial business ties with Australia that are of benefit to Australia. The applicant stated he had worked in the Housing Department of the Hong Kong Government for 25 years and had extensive experience in the housing and property management field. The Tribunal accepts the applicant has extensive experience in government in the property management area. The applicant however has largely retired from the workforce and is not claiming to be seeking employment in Australia. The Tribunal is not satisfied that his business ties will be of any particular benefit to Australia.
The Tribunal is not satisfied there are any particular cultural ties of the applicant with Australia that are of benefit to Australia. None were submitted as such at the hearing.
In relation to employment ties with Australia that are to the benefit of the community, the applicant stated he did not want to be a burden on the community. The applicant has submitted he has a good pension through his former long-term employment through the Hong Kong Government. His interest now was to serve the local community in Australia and be of assistance to the community. The Tribunal accepts the applicant desires to assist the community. The Tribunal is not satisfied however on the evidence before it that the applicant has any employment ties that are to the benefit of the community.
The applicant’s wife has submitted her own employment ties with Australia that are of benefit to Australia. The applicant’s wife is a graduate in management at Macquarie University and has worked as a freelance audio describer for some years, having completed a range of training in audio description and becoming a volunteer of the Hong Kong Society for the Blind. It is submitted that the applicant’s wife has worked in the Arts with the Disabled Association of Hong Kong on live theatre performances, films and events. The Tribunal notes the evidence that in February 2023 the applicant’s wife submitted to SBS an application for the role of a Cantonese Casual Producer at the network.
At the Tribunal’s hearing the applicant and his wife submitted that she would be able to make a meaningful contribution through her skills to the Australian community, particularly the growing Cantonese-speaking diaspora and the visually impaired.
The Tribunal accepts the applicant’s wife has skills and experience in audio description. The Tribunal notes however that there is no evidence or claim the applicant’s wife has secured any potential employment in Australia. The applicant’s wife furthermore has no past experience of employment ties in Australia in this area. The Tribunal does not consider the applicant’s wife has employment ties that are to the benefit of Australia.
The Tribunal has considered whether the applicant has substantial personal ties to Australia. The applicant stated he has a brother that lives in Sydney, Mr Ka Tat Lam, and his sister-in-law Ms Wah Yuk Judy Lam Chu. Both provided oral testimony at the Tribunal’s hearing. The applicant has also submitted he has two nephews in Australia.
It was submitted that the benefit to Australia of the applicant’s purported substantial personal ties to Australia will be the care he and his wife will be able to provide to his brother and his family. The applicant stated that he would be able to assist his brother and sister-in-law at remaining in their home and not being a burden as such on the State in the future. The applicant claims he and his wife are financially self-sufficient, so they will relieve the Australian government of any responsibility and cost of providing for his brother and sister-in-law in their old age. This was reflected in the oral testimony of Mr Ka Tat Lam who stated he and his wife are in their 70s and wish to remain living at home independently and not requiring any home care. He stated that if the applicant were able to come and live in Australia, he would be able (along with the applicant’s wife) to provide support when needed and ensure he can remain living independently in his own home.
The Tribunal has considered the evidence. The Tribunal is not satisfied that the applicant’s claimed personal ties with Australia are substantial. The Tribunal notes the personal ties claimed are not those with immediate family members being a partner or a dependent child. Furthermore the Tribunal notes, as outlined in the decision record and discussed at the hearing, the applicant spent only 49 days in Australia between his arrival in Australia as an Australian permanent resident on 9 January 2005 and the lodgement of the application for the visa under review on 5 July 2022. Whilst the applicant and his witnesses have discussed the reasons for the lack of time spent in Australia – namely the health of the applicant’s now deceased older brother in Hong Kong who required his care and support – the Tribunal does not consider this either adequately explains the prolonged absence of this duration since 2005, or how the applicant has substantial personal ties to Australia that are to the benefit of Australia. Given the prolonged absence from Australia, the Tribunal furthermore is not satisfied that the applicant’s personal ties to his brother and his brother’s family in Australia are substantial, nor are they of particular benefit to Australia.
In relation to the care and support the applicant and the witnesses submitted will be provided by the applicant and his wife, the Tribunal gives the claim limited weight. If the applicant wishes to care for his Australian citizen or permanent resident brother, then he can choose to lodge an application for a Carer visa. The Tribunal furthermore notes that the applicant’s brother and sister-in-law as Australian citizens have access to universal health care assistance and support like any other Australian citizen. There is no suggestion of any current needs the applicant’s brother and sister-in-law have that are not being adequately provided for by themselves as self-funded retirees or through Australian government assistance.
The Tribunal accepts the applicant has personal ties to Australia through his brother, sister-in-law and nephews. The Tribunal however is not satisfied that these ties are either substantial, or are to the ‘benefit of Australia’.
Accordingly, the Tribunal is not satisfied that at the time of application the applicant had substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia.
Does the applicant meet the prescribed residency requirements?
In addition to having substantial ties with Australia, cl 155.212(3A) requires that unless there are compelling reasons for the absence, the applicant has not been absent from Australia for a continuous period of five years or more since the date the applicant’s most recent permanent visa was granted or the date he or she ceased to be a citizen.
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].
The Tribunal notes that the applicant was absent from Australia for a continuous period of five years since his Skilled Permanent (Class BQ) (subclass 138) visa was granted on 30 April 2004. As highlighted in the delegate’s decision record, after arriving in Australia on 9 January 2005 he spent just 49 days in Australia, and 6,337 days outside of Australia, until he lodged the current visa application on 5 July 2022. The Tribunal finds the applicant was subsequently absent for a continuous period of five years or more since the grant of his visa in April 2004.
The applicant has submitted, as have his witnesses, that there were compelling reasons for his absence.
The applicant submitted he had obligations to look after his older brother in Hong Kong who was a widower with two daughters living in Los Angeles and Hawaii. The applicant submitted that in 2004/2005 his brother was diagnosed with diabetes. He states that in 2015 his brother commenced dialysis with frequent hospitalisation and medical appointments. He stated he played a key role in supporting his elder brother with these arrangements. The applicant submitted that in 2019 diabetes complications led to his brother having medical treatment that resulted in him becoming a wheelchair user. The applicant states he was forced to then find his elder brother a more suitable residence and help him settle down. He states that in 2021 after tenancy issues he had to assist his elder brother with a new residence and he undertook new responsibilities.
The Tribunal accepts that the applicant played a role in assisting his late brother between 2015 and 2022. The Tribunal does not consider these caring responsibilities represent a compelling reason for an almost continuous absence from Australia since January 2005. The Tribunal notes other reasons that were submitted, such as the needs of his late father-in-law. The Tribunal does not accept either the applicant’s late brother or father-in-law were dependent upon the applicant to the degree that he was compelled to depart Australia in 2005 and remain absent for almost 17 years. The Tribunal notes the applicant has claimed he was working in a senior housing role in the Hong Kong Government during this period. The applicant subsequently was not undertaking a role as a full-time carer of his brother or his father-in-law. Based upon all the evidence before it, the Tribunal does not consider the reasons provided for the long absence of the applicant from Australia are compelling.
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(3A).
Does the applicant meet the family member criterion?
Subclause 155.212(4) is met if at the time of application, 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
·meets the requirements of 155.212(2), (3) or (3A) (relating to presence in Australia, substantial ties, and absence from Australia) and has lodged a separate application for a Class BB visa. For visa applications made before 1 July 2012, the person may lodge a separate or combined application.
The applicant submitted his nephew, Mr Vincent Wong, is the holder of a Subclass 155 visa. The Tribunal accepts the evidence that Mr Wong lodged a subclass 155 visa on 25 July 2020. For the purposes of this review the Tribunal accepts Mr Wong is the current holder of a Subclass 155 visa. Mr Wong serves as head of business development for the Bank of China branch in Perth, Western Australia.
The Act provides that ‘member of the family unit’ of a person has the meaning given by the Regulations. Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.
Regulation 1.12(2) states relevantly that for post 19 November 2016 applications, a person is a member of the family unit of another person (the applicant being the ‘family head’) if the person:
(a)is a spouse or de facto partner of the family head; or
(b)is a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de facto partner) and:
(i)has not turned 18; or
(ii)has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or
(iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or
(c)is a dependent child of a person who meets the conditions in paragraph (b).
Mr Vincent Wong is neither the spouse, de facto partner, child, or step-child of the applicant. There is no suggestion of him being a dependent of the applicant.
Mr Wong is therefore not a ‘member of the family unit’ of the applicant for the purposes of this review.
The applicant has not submitted any further potential members of the family unit that have either been granted a subclass 155 visa or meet the requirements of subclause (2), (3) or (3A) and have lodged separate applications for a Return (Residence) (Class BB) visa.
Accordingly, the applicant does not meet cl 155.212(4).
For the reasons above, the Tribunal finds the applicant does not meet the criteria for the grant of a Subclass 155 visa.
The Tribunal has considered whether the applicant meets the criteria for a Subclass 157 visa including cl 157.212.
Clause 157.212(2) requires that 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 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.

The applicant confirmed, as outlined in the decision record, he was not the holder of a permanent visa at anytime in the five-year period preceding his application for the visa on 5 July 2022.
Whilst the applicant was inside Australia at the time of application, he was not, in the relevant five years before lodgement, lawfully present in Australia as the holder of a permanent visa. The Tribunal therefore finds, the applicant does not meet the requirements in clause 157.212 (2).
The applicant also does not meet cl 157.212(3). The applicant stated ‘no’ when asked if he was the member of a family unit of a person who has been granted a subclass 157 visa that is still in effect. There is furthermore no evidence or claim either that the applicant is a member of the family unit of a person that meets the requirements of cl 157.212 (2) and has lodged a separate application for a Return (Residence) (Class BB) visa. The applicant subsequently does not meet cl 157.212(3).
The Tribunal notes that it has conducted this review on the basis, as agreed to by the visa applicants, that the first-named applicant Mr Ka Keung Lam, is the review applicant before the Tribunal. The Tribunal permitted the second-named applicant Ms Man Ling Mona So to provide her oral evidence and answer the Tribunal’s questions alongside the first-named applicant. For completeness, the Tribunal notes there is no evidence before the Tribunal to suggest the second-named applicant would have met the requirements for the grant of the visa if she had been nominated as the review applicant. The Tribunal has discussed the second-named applicant’s evidence in this decision record. The parties confirmed that she was not present in Australia as the holder of a permanent visa in the five years preceding the lodgement of her own visa application so would not have met cl 155.212(2). She was in Australia at the time of the lodgement of her own application (on the same day as the first-named applicant) so cannot meet cl 155.212(3). The Tribunal is not satisfied that she has demonstrated substantial business, cultural, employment or personal ties that are of benefit to Australia for the purposes of cl 155.212(3A). The second-named applicant did not nominate any other family member other than Mr Vincent Wong in relation to meeting cl 155.212(4). There is no evidence or claim of any other member of the family unit of the second-named applicant that would allow the second-named applicant to meet this subclause. There is no evidence or claim the second-named applicant was, in the relevant five years before lodgement of her application, lawfully present in Australia as the holder of a permanent visa. The second-named applicant would not therefore have met the requirements in cl 157.212(2). Finally, there was no claim or evidence from the second-named applicant that she was the member of a family unit of a person who has been granted a subclass 157 visa that is still in effect. There was furthermore no evidence or claim either that the second-named applicant was a member of the family unit of a person that meets the requirements of cl 157.212(2) and had lodged a separate application for a Return (Residence) (Class BB) visa. The Tribunal subsequently notes, for completeness, that there is no evidence before it to suggest the second-named applicant would have met these time of application requirements for the grant of the visa even if she were to be the specific review applicant is this matter.
DECISION
The Tribunal affirms the decision not to grant the first-named visa applicant a Return (Residence) (Class BB) visa.
The Tribunal has no jurisdiction in relation to the second-named visa applicant.
Justin Owen
Deputy President

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).
…
(3A)The applicant meets the requirements of this subclause if the applicant is in Australia, and the Minister is satisfied that the applicant:
(a)has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia; and
(b)has not been absent from Australia for a continuous period of 5 years or more since:
(i)the date of grant of the applicant's most recent permanent visa, unless there are compelling reasons for the absence; or
(ii)the date on which the applicant ceased to be a citizen unless there are compelling reasons for the absence.

[2023] AATA 4395

19 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction