LI (Migration)

[2020] AATA 3920

LI (Migration) [2020] AATA 3920 (20 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Zhuhui LI

VISA APPLICANT:  Mr Li Heng LI

CASE NUMBER:  1814054

HOME AFFAIRS REFERENCE(S):          BCC2018/1075666

MEMBER:Michael Cooke

DATE:20 July 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Return (Residence) (Class BB) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 155 (Five Year Resident Return) visa:

·cl.155.211 of Schedule 2 to the Regulations;

·cl.155.212(3) of Schedule 2 to the Regulations.

Statement made on 20 July 2020 at 5:52pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – Australian permanent resident – substantial beneficial ties with Australia  – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 155.211, 155.212

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 Home Affairs on 9 March 2018 to refuse to grant the visa applicant (the applicant) a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 March 2018. 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 (the Regulations). Relevantly to this case, they include cl.155.212.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.155.212 (3) because he could not establish that he had substantial ties with Australia.

4. The applicant has subsequently provided various submissions in which he has claimed substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is the applicant’s ties with Australia and whether they are substantial.

   Does the applicant meet the residency/citizenship requirement?

7. Clause 155.211 requires that at the time of application the applicant either:

   ·is an Australian permanent resident; or

   ·was an Australian citizen but has subsequently lost or renounced Australian citizenship; or

   ·is a former Australian permanent resident, other than a former Australian permanent resident whose most recent permanent visa was cancelled.

8. The Tribunal finds that at the time of application the applicant is an Australian permanent resident and meets cl.155.211.

9. The information on both the Department and Tribunal file indicates the applicant is a Canadian citizen (by descent) and an Australian permanent resident. He submitted his application for a Resident Return Visa on 06 March 2018. Departmental records indicate that, in the period of 5 years immediately before submitting the current application for a Resident Return Visa (from 06 March 2013 to 06 March 2018) the applicant had been present in Australia, as the holder of a Resident Return Visa on the following dates:

   ·09 March 2015 to 21 March 2015;

   ·20 June 2016 to 05 July 2016;

   ·22 September 2017 to 02 October 2017

10. Thus, he was in Australia for a total time of 40 days in the period of 5 years immediately before submitting this visa application.

11. He has subsequently visited Australia on Subclass UD601 visas on 5 June 2018 and 15 February 2019.

12. The applicant has provided an impressive quantity of information (both personal and testimonials from family members) addressing the crucial issues in the case. Having attended university in Sydney he went to work for the renowned architectural firm - Tanner Architects. He has established that he initially went to Canada to help facilitate higher Australian education qualifications in the Architecture discipline. In the interim a budding relationship with a fellow student at university has blossomed into the desire to be life partners. His partner has lived with him for some time in Canada, but they are both eager to return to Australia to begin a family and settle their permanent lives together.

13. The applicant addressed the salient issues in a submission as follows:

    Dear Sir/Madam,

    I am writing this statement to provide additional evidence of my substantial personal ties to Australia to further support my written statement titled “Visa Applicant’s Written Statement” dated May 11, 2018 and submitted to the Administrative Appeals Tribunal (AAT) as part of my application for review on May 15, 2018.

    [1] I believe I satisfy the requirements for a Resident Return Visa, subclass 155 based on my substantial personal ties with Australia.

    [2] In this statement, paragraphs [3] to [5] present a summary of the substantial ties and supporting evidence that was submitted with my original application. Paragraphs [6] to [8] present my relationship with an Australian Citizen partner as an additional substantial personal tie. Paragraph [9] provides further evidence of compelling reasons for my absence in the period prior to my visa application.

    [3] My substantial ties to Australia which were submitted with my original application and the relevant supporting documents are listed below:

    • History of residency (Supporting Document 1)

    • Higher education in Australia (Supporting Document 8)

    • Employment in which cultural contributions were made to the country (Supporting Document 13)

    • Graduate Membership in the Australian Institute of Architects (Supporting Document 12)

    • Australian citizen parents and extended family members (Supporting Documents 3, 4, 5, and 6)

    • Assets in Australia (Supporting Documents 10 and 11)

    [4] The evidence listed above, which was previously submitted, demonstrates substantial personal ties and is well aligned with departmental policy guidelines set out in the Procedures Advice Manual (PAM3: Schedule 2 RRV Resident Return Visas). Guidelines examples of personal ties listed in the Procedures Advice Manual include and are not limited to:

    i) History of long-term residence in Australia prior to the last five years, particularly, if the applicant has spent their formative years in Australia, or studied or been employed in Australia.

    I satisfy this guideline example as I lived with my parents in their home in Penshurst, NSW during the entirety of my undergraduate studies at the University of Sydney (Supporting

    Document 2: Bachelor’s degree from the University of Sydney previously submitted). I was employed by Tanner Architects, a Sydney-based architecture firm after my graduation (Supporting Document 13 - Reference Letter from Tanner Architects previously submitted).

    ii) Ownership of home or other personal assets in Australia

    I satisfy this guideline example as I have personal assets in Australia (Supporting Document 10: Bank account statement from St. George Bank and Supporting Document 11: Superannuation statement previously submitted)

    iii) The applicant has close family members, or close friends in the nature of family, who are permanent residents or citizens who reside in Australia

    I satisfy this guideline example as my parents are both Australian citizens (Supporting Document 3 previously submitted). I have aunts, uncles, and cousins who are all Australia citizens or permanent residents living, working, or retired in Australia for decades. I have made frequent trips to visit them as I am the only member of the family outside of Australia

    (Supporting Document 7: My aunt’s Australian passport - previously submitted, Supporting Document 8: Certificate of Relationship between my Father and his sister - my aunt, previously submitted).

    iv) Whether the applicant intends to reside permanently

    I satisfy this guideline example as it is my intention to return and reside permanently. Based on the above evidence, it is clear that I am the only member of my family currently outside of Australia. My family ties are with Australia and my intention is to return home.

    [5] Based on the evidence above, all of which was submitted previously, it is clear that my ties with Australia are substantial and should well satisfy the requirements of sub clause 155.212(3) for a Resident Return Visa.

    The provided evidence indicates that Michelle Watson and I have been in a romantic relationship for the past 3 years and 3 months since March 2017, and in particular, have been living together at the same address in Toronto, Canada for the past 24 months since July 2018. Proof of residency at the same address is provided (Supporting Document G - Proof of residence at the same address, Supporting Document H - Joint Pet Ownership). To illustrate that this relationship constitutes a personal tie of a close and continual nature, I provide a brief history of the relationship:

    Michelle Watson and I first met while studying a Bachelor of Design in Architecture together at The University of Sydney in Sydney, Australia in February 2009.

    We dated during university for 1 year and 10 months from October 2010 to August 2012

    In July 2011 we travelled to Toronto, Canada together for a holiday.

    In August 2012 I went to Toronto, Canada to pursue my Master of Architecture degree at the University of Toronto. As discussed in Paragraph [8] of my previous statement dated May 11, 2018 explaining my reason for departure from Australia, a Master of Architecture is a prerequisite for registration as an Architect in any jurisdiction including in New South Wales, Australia. I felt it was immensely valuable to obtain this international experience in my field. In particular, the Professional Experience Program at the University of Toronto provided an opportunity for me to work overseas in Switzerland at one of the top architecture firms in the world. This was the motivation for me to leave Australia to pursue this opportunity because there was no equivalent opportunity or program at the University of Sydney at that time. Michelle remained in Sydney to complete her combined degree in Bachelor of Civil engineering and Bachelor of Architecture and remained in Australia to pursue a career in Geotechnical engineering and we remained in contact as friends while pursuing our individual careers. I travelled to Australia to visit Michelle and her friends and family in September 2017 and May 2018. On July 6, 2018, Michelle moved to Toronto, Canada for a work assignment by her company, Arup, on an Intra-Company Transfer visa Michelle and I have been living together at the same address since her arrival in Toronto for the past 24 months

    In February 2019, Michelle and I travelled to Australia together to attend a friend’s wedding and to visit family and friends

    Michelle and I intend to move back to Sydney together at the completion of Michelle’s work assignment to start a family.

    Further to Paragraph [8] of “Visa Applicant’s Written Statement” dated May 11, 2018 relating to my absence from Australia, I would like to provide further evidence of compelling reasons for my absence in the period since my previous statement. As discussed previously, my primary reasons for my absence from Australia has been for education and international work experience as an architect. In July 2018, my Australian citizen partner Michelle Louise Watson transferred with her company, Arup, to work in Toronto on an Intra-Company Transfer visa, to gain international experience that is needed in her field of work as a geotechnical engineer. As you may agree the experience, we both bring back to our respective fields will no doubt be of benefit to Australia.

    In summary, I appreciate you taking into consideration this further evidence in support of my substantial personal ties of benefit to Australia.

14. The Tribunal is satisfied that the applicant has established that he can meet the demanding criteria in cl.155.212(3). In particular that he has ‘substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia’.

15. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 155 visa.

    DECISION

16. The Tribunal remits the application for a Return (Residence) (Class BB) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 155 (Five Year Resident Return) visa:

    ·cl.155.211 of Schedule 2 to the Regulations; and

    ·cl.155.212(3) of Schedule 2 to the Regulations.

    Michael Cooke
    Senior Member