Makeny (Migration)

[2020] AATA 3930

Makeny (Migration) [2020] AATA 3930 (29 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Angelina Adol Makeny

VISA APPLICANT:  Dr Henry Makeny Dhieu

CASE NUMBER:  1909161

HOME AFFAIRS REFERENCE(S):          CLF2019/19362 KE01012792-V

MEMBER:Michael Cooke

DATE:29 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; and

·cl.155.212(1) of Schedule 2 to the Regulations.

Statement made on 29 July 2020 at 3:45pm

CATCHWORDS
MIGRATION –subclass 155 (Five Year Resident Return) visa – applicant was not in the migration zone – applicant had substantial personal ties with Australia –involved in humanitarian work – applicant meets the prescribed residency -– decision under review remitted

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 155.211, 157.212

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 4 February 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 1 August 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).

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

4. The review applicant appeared before the Tribunal on 29 July 2020 from Juba, South Sudan to give evidence and present arguments by telephone. The review applicant was represented in relation to the review by her registered migration agent.

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 visa applicant has substantial ties with Australia.

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

9. Accordingly, the applicant meets cl.155.211.

   Lawful presence/substantial ties

10. 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.

11. 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?

12. 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.

13. 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?

14. The review applicant in her submission to the Department has outlined the visa applicant’s very significant family ties to Australia. This composes of his wife, six children (one recently demised according to oral evidence) and eight grandchildren. The family have kept in constant contact with the visa applicant on the Internet and personally. The review applicant has indicated that there have been remittances in both directions over the years. His daughter insists that now he is retired from his onerous work he wished to reunite and spend time with his family who miss him dreadfully after so many years helping his fellow man.

15. The visa applicant (Dr Henry Makeny) has been involved for many years in humanitarian work in South Sudan and Kenya amongst the South Sudanese community. That particular country has been wracked by civil unrest and war causing a large refugee problem with constant need of medical care.

16. Accordingly, the Tribunal is satisfied that at the time of application the visa applicant had substantial personal ties with Australia that are of benefit to Australia.

    Does the applicant meet the prescribed residency requirements?

17. 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).

18. The Tribunal finds that the applicant was a permanent resident in the 10 years before the visa application and the period of absence from Australia since last relevant departure does not total more than 5 years. He last left Australia on 13 July 2015. He applied for the visa on 1 August 2018.

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

20. Given the findings above, the applicant meets cl.155.212(3)(b).

21. 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

22. 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(1) of Schedule 2 to the Regulations.

    Michael Cooke
    Senior 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.