Lim (Migration)

[2021] AATA 5575

Lim (Migration) [2021] AATA 5575 (11 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Choon Boey Lim

VISA APPLICANT:  Miss Choon Kiat Lim

CASE NUMBER:  1914956

HOME AFFAIRS REFERENCE(S):          BCC2018/5168846

MEMBER:Sean Baker

DATE:11 November 2021

PLACE OF DECISION:  Melbourne

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.155.212of Schedule 2 to the Regulations.

Statement made on 11 November 2021 at 3:08pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – substantial ties criterion – strong personal ties to Australia through sister – very close and mutually support each other – shared finances and investment property – benefit to Australia – skilled professional – residency/citizenship status or history – decision under review remitted

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

CASES
Lorenzo Paduano v MIMIA [2005] FCA 211

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 27 May 2019 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 20 November 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 because the delegate found the applicant was neither lawfully present in Australia for the relevant time, had substantial ties with Australia nor was she a member of the family unit of a person who met these requirements.

4. The review applicant, Ms Choon (Fion) Boey Lim and her sister, the visa applicant, Ms Choon (Jane) Kiat Lim, appeared before the Tribunal on 10 November 2021 to give evidence and present arguments.

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 whether the applicant meets the substantial ties criterion.

7. 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.

8. 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 meet the substantial ties criterion?

9. 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 she has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.

10. 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.

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

11. The ties referred to are not further defined in the legislation. However, according to Department policy, the policy intention of the ‘substantial ties’ provision is to allow visas to be granted to people who have substantial ties with Australia and are contributing to Australia’s well-being, but who have not spent sufficient time physically present in Australia in the past five years to satisfy the physical residence criterion.[1]

    [1] Policy - Migration Regulations - Schedules - Sch2 RRV - Resident return visas - BB 155 Five Year Resident Return - Substantial ties of benefit to Australia - About the ‘substantial ties of benefit’ provision.

12. Having carefully considered the material before me I find that the applicant has established close personal ties with Australia that are of benefit to Australia.

13. The material before me, and their evidence to me at the hearing establishes that Jane and Fion are very close. They gave evidence that they support each other despite currently living in separate countries. Fion said that she had originally decided to come to Australia to pursue her PhD because Jane was resident in Australia at that time. They also explained that they operate joint bank accounts. They explained that they are two of three siblings, their brother has his family but they are both single and care and rely on each other.

14. The applicant has provided a range of materials to evidence her ties with Australia. Jane and Fion jointly own a rental property in Point Cook, Vic. They have provided evidence that this property is rented, and they told me at the hearing that they continue to hold this property.

15. Jane has been a member of the CPA since 1990. She practices as a management consultant and has done for 20 years. She worked for a range of companies in Australia and currently works with GLG where she engages with clients in South East Asia and around the globe

16. Jane continues to hold bank accounts and superannuation in Australia. She told me that this was because her intention was always to return to Australia.

17. Jane also explained that she had returned to Singapore because of the health of their elderly parents. Her father has now sadly passed away and her mother had had an acute stroke just before she was due to return to Australia.

18. All of the above has been evidenced with documents provided.

19. I accept that the sisters are very close and mutually support each other. They hold a shared investment property as well as shared bank accounts. The visa applicant also holds accounts and superannuation in Australia. She has worked at a high level as a management consultant both in Australia and internationally. She continues to be a member of the CPA.

20. Having regard to the information before me I find that Jane has strong personal ties to Australia through her sister, that these are enduring, and multi-faceted, having the personal relationship elements but also the shared finances and investment property. In addition to these, her bank accounts and super here evidence her intent to return to Australia. As a skilled professional she would provide additional benefits to Australia and the Australian economy. I find that the visa applicant on the above has substantial ties with Australia and is and will contribute to Australia’s well-being.

21. Accordingly, the Tribunal is 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?

22. 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).

23. 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].

24. The applicant last departed Australia before this application as the holder of a permanent visa on 31 December 2016. The applicant had been present in Australia as a holder of a Resident Return Visa for 54 days in the last five years immediately before the application for the visa and therefore was not continually absent for more than 5 years. She therefore meets the requirements of cl.155.212(3).

25. Accordingly, the Tribunal is satisfied that at the time of application, the applicant meets the prescribed residency requirements.

26. Given the findings above, the applicant meets cl.155.212(3). The applicant therefore satisfies cl.155.212.

    Conclusion

27. 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

28. 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.155.212 of Schedule 2 to the Regulations.

    Sean Baker
    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.