Maneesuwan (Migration)

[2018] AATA 2480

Maneesuwan (Migration) [2018] AATA 2480 (5 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Subpasitt Maneesuwan

VISA APPLICANT:  Mr Nuttawut Maneesuwan

CASE NUMBER:  1622285

DIBP REFERENCE(S):  156292

MEMBER:John Billings

DATE:5 June 2018

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.155.212 of Schedule 2 to the Regulations

Statement made on 05 June 2018 at 12:59pm

CATCHWORDS
Migration – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – Where the applicant has been absent from Australia for more than five years – Whether compelling reasons exist for the absence – Where the visa applicant was caring for his children in his home country – Compelling reasons need not involve an involuntary element – Compelling reasons need not cover the entire absence of the visa applicant – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 155.212(3)

CASES
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 Immigration on 29 September 2016 to refuse to grant the visa applicant a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant, Mr Nuttawut Maneesuwan (“Nuttawut”) applied to the Department of Immigration for the visa on 29 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.

3. 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). This provides in particular that an applicant meets the requirements of the sub-clause if the applicant is outside Australia and the Minister is satisfied that he or she has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia; and he or she has not been absent from Australia for a continuous period of five years or more immediately before the application for the visa, unless there are compelling reasons for the absence.

4. The delegate refused to grant the visa on the basis that Nuttawut did not meet any sub-clause of cl.155.212. In relation to cl.155.212(3), the delegate was satisfied that Nuttawut has substantial ties to Australia with Australia that are of benefit to Australia. The delegate however noted that Nuttawut had been absent from Australia for a continuous period of five year or more immediately before the application for the visa. Without elaborating, the delegate then said that “based on the evidence provided” she found that “there are not compelling reasons for the absence”.

5. The review applicant, Mr Subpasitt Maneesuwan (“Subpasitt”), is Nuttawut’s brother.  Subpasitt applied for review on 23 December 2016.

6. Subpasitt appeared before the Tribunal on 1 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Nisakorn Maneesuwan (“Nisakorn”) and, by telephone, from Nuttawut.  The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

7. Nuttawut is a 31 year old national of Thailand.  Subpasitt is a 33 year old Australian citizen born in Thailand.  He is unmarried.  Nisakorn is a 61 year old national of Thailand.  She is an Australian permanent resident.  She is unmarried. 

8. Subpasitt and Nisakorn live together in premises above the restaurant in Melbourne that they own and operate.  Nuttawut works in Thailand as a market trader.

9. Nisakorn first arrived in Australia in 1987.  She has departed and re-entered Australia on numerous occasions since then.  She currently holds a Class BB Subclass 155 Resident Return visa.  Nisakorn has no biological children.  She adopted Subpasitt and Nuttawut when they were children.  Subpasitt and Nuttawut are the biological children of Nisakorn’s younger sister, Ubon.  The adoption took place after the relationship between Ubon and her ex-partner came to an end.  Sponsored by Nisakorn for migration to Australia, Subpasitt and Nuttawut arrived here on 20 May 2001 holding Class AH Subclass 101 Child visas.  Subpasitt was aged 16 and Nuttawut was aged 14 at the time they arrived.  Subpasitt has departed and re-entered Australia on numerous occasions.

10. Nuttawut departed Australia for about a month at the end of 2001, returning in early 2002.  He next departed in June 2003 and returned on 25 August 2008.  On 3 November 2005, at the age of 19 years, Nuttawut departed Australia.  He has been offshore since that time. 

11. In a written statement accompanying the visa application Nuttawut said that the reason for his absence from Australia was that he had been in relationships in Thailand and he was the father to four small children there.  He said that he had to leave Australia in November 2005 to be with his first wife, Rujiraporn Yoddam (“Rujiraporn”), after he learned that she was pregnant.  He said that he and Rujiraporn had been in a relationship in Thailand from the beginning of 2005.  Rujiraporn gave birth to their daughter in May 2006.  Nuttawut said he could not rely on his near relatives [especially his maternal aunts] for help as they had their own family commitments and Rujiraporn’s family did not accept him as son-in-law.  After two and a half years together Nuttawut and Rujiraporn separated due mainly to religious differences.  Nuttawut said he was able to have his daughter with him for about six months after that until he lost his job and she went to live with Rujiraporn.  Nuttawut was unhappy but he made contact with a friend from high school, Kanokwan Rammak (“Kanokwan”), and formed a relationship with her.  They were married and had three children together – in May 2011, April 2012 and July 2014.  Before Nuttawut and Kanokwan had their first child Nuttawut was thinking about returning to Australia and was planning that, but he had to put his plan “on hold” when Kanokwan became pregnant with their first child.  Nuttawut and Kanokwan moved from Bangkok to their hometown where her parents had offered them employment in the family business.  Family members on both sides of the family helped the couple look after the children so they could go to work.  Nuttawut said that nowadays his relatives’ family commitments were more settled as their own children had grown up.  Also, the older two of Nuttawut’s and Kanokwan’s children had started school.  Nuttawut said that he was “in a much better position now to return to Australia to be with [his] mum and brother even though he [would] miss [his] family … in Thailand”.

12. In a written statement to the Tribunal Nuttawut said that the reasons for his absence “may not be …[compelling] in the eyes of immigration law but [they are] compelling in a real life situation and [were] beyond [his] control”.  He said that his family and Kanokwan’s parents had offered full support to her and the children so now was the opportunity for him to apply for the visa.  He added that he had always maintained his relationship with Nisakorn and Subpasitt because they knew it was important for him to stay connected with Australia. 

13. The Department’s file includes a copy of the relevant pages of Nuttawut’s passports; Nuttawut’s children’s birth certificates; a 2014 change of name certificate for Nuttawut; a 2012 drug rehabilitation certificate regarding Nuttawut; and documents concerning the restaurant business in Melbourne.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.  An extract of cl.155.212 is set out in the attachment to this decision record. 

16. The evidence would not support any claim that Nuttawut meets subclause (2),(3A) or (4) of cl.155.212. The issue is whether he meets cl.155.212(3).

17. Before considering the elements of cl.155.212(3) the Tribunal makes some observations. The most important observation is that the Tribunal formed a favourable view in relation to the credibility of Subpasitt, Nisakorn and Nuttawut. There was substantial consistency in their evidence. They responded directly to the Tribunal’s inquiries and the Tribunal considers that they did not seek to overstate points that may be in Nuttawut’s favour or understate points that may not be in his favour.

18. The remaining observations are incidental, though worthy of mention.  There is a note on the Department’s file that Nuttawut unsuccessfully applied for a Resident Return visa in 2007.  The reason that the visa was refused does not appear there.  Subpasitt told the Tribunal that Nuttawut told him he understood the reason was that he had not provided sufficient information to the Department at the time.  Nuttawut could not remember anything about that application.  

19. In further notes the delegate appears to have queried paternity of Nuttawut’s first child given the timing of events.  However, the Department’s records indicate that Nuttawut returned to Australia from Thailand in August 2005.  Nuttawut’s statement and the relevant birth certificate indicate that the child was born in May the following year.  That was nine months after August 2005.  The Tribunal heard that the delivery was at full term.  So there does not appear to be any real issue. 

20. The change of name certificate mentioned earlier records that Nuttawut requested a change of his given name from Anucha to Nuttawut.  In the visa application he said the reason was “self-preference”.  “Nuttawut” appears in all his children’s birth certificates save for the 2012 birth certificate.  Nevertheless, this does not appear to be a significant matter.

21. Finally, the Tribunal has mentioned that a drug rehabilitation certificate was submitted to the Department.  Nuttawut provided a statement with the visa application saying that he was imprisoned for four days and required to undergo drug rehabilitation after he consumed an illegal drug.  The certificate, dated in October 2012, indicates that he satisfactorily underwent rehabilitation and was exonerated.   

    Are the requirements of subclause 155.212(3) met?  

22. Subclause 155.212(3) 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.  Further, he or she must have a particular residency or citizenship status or history, and must 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?

23. The delegate recorded that she was satisfied that Nuttawut has substantial ties with Australia which are of benefit to Australia.  The delegate referred to the restaurant business but did not expressly find that Nuttawut has substantial business or employment ties with Australia.  The Tribunal infers from the delegate’s reasons that she accepted at least that Nuttawut has substantial personal ties with Australia which are of benefit to Australia because his adoptive mother, an Australian permanent resident, and his brother, an Australian citizen, live here.   

24. Concerning any business or employment ties, the Tribunal heard that Nuttawut does not have any financial interest in the business, but Subpasitt has offered him employment in the restaurant.  Subpasitt hopes that Nuttawut will relieve Nisakorn of some of her responsibilities and even be able to make time available for Subpasitt to undertake a business management course. 

25. Whether or not there can be said to be substantial business or employment ties that Nuttawut has with Australia, the Tribunal is satisfied that he has substantial personal ties with Australia that are of benefit to Australia.  Nuttawut’s aggregate time in Australia up until November 2005 was less than a year, though that was during his important teenage years.  The Tribunal heard that the relationship Nuttawut has with Subpasitt has always been a close one: Subpasitt said that he was lonely in Australia without Nuttawut.  Regarding the relationship Subpasitt and Nuttawut have with Nisakorn, Subpasitt said that it was like having two mothers: even before Nisakorn adopted them she was providing financial support to them and, as Subpasitt put it, she gave them lots of attention on her regular visits to Thailand.  The relationship between Nisakorn and Nuttawut was strained at the time he left Australia because she was angry that he fathered a child at his age, but the relationship between them was restored within a year or two.  Nisakorn confirmed that the relationship was close, like mother and son.  The Tribunal heard that, among other things, she kept his name on her Medicare card in anticipation or hope that he would return to Australia.  Not long after he went back to Thailand Nuttawut started to talk about coming back to Australia.  On their many trips to Thailand since 2005 Nisakorn and Subpasitt spent time with Nuttawut and his family, including his first born child.  (That child, incidentally, is now aged 12.  She visits Nuttawut and the family a couple of times a year.  She has kept in touch with Nisakorn and Subpasitt too, via Skype).  According to the oral evidence, when in Australia Nisakorn and Subpasitt have maintained regular contact with Nuttawut by phone and via the internet.  The Tribunal discussed with Nisakorn and Subpasitt the emotional need they have for Nuttawut to return to Australia.  The Tribunal is satisfied that apart from their practical needs they genuinely have a strong emotional need for Nuttawut to return to Australia and that they did not overstate that. 

26. Obviously, Nuttawut has personal ties with Thailand.  Those ties are so substantial that they appear to outweigh the personal ties he has with Australia.  As is recognised in PAM3, however, the Regulations do not require that an applicant has personal ties with Australia that outweigh his or her personal ties with any other country.  The Regulations require only that the applicant has substantial personal ties with Australia which are of benefit to Australia. 

27. On the basis of the evidence before it, the Tribunal is satisfied that at the time of application Nuttawut had substantial personal ties with Australia which are of benefit to Australia.

    Does the applicant meet the prescribed residency requirements?

28. 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).

29. There is no controversy in relation to the following matters.  Nuttawut last left Australia as a permanent resident.  He was continuously absent from Australia for five years or more immediately before the visa application.  The question then is whether there are compelling reasons for the absence. 

30. The Tribunal has noted that the delegate did not elaborate on her finding that there are not compelling reasons for Nuttawut’s absence from Australia. 

31. The expression “compelling reason” is not defined in the Regulations.  In a case that considered a previous version of the Regulations relating to Subclass 155, the Federal Court 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: Paduano v MIMIA [2005] FCA 211, Crennan J, at [37], [41].

32. The Tribunal has had regard to what appears in PAM3.  Seven examples are given there of what could amount to compelling reasons.  Nuttawut’s situation does not precisely match any of those examples, though that would not be fatal to his application in any event.  One example given in PAM 3 is that “the applicant is living overseas in an ongoing relationship with an Australian citizen partner”.  Another is that “the applicant can demonstrate they have been waiting for a significant personal event to occur that has prevented them from relocating to or returning to Australia [though t]he period of time for any such event would have to be reasonable in its context, for example … waiting to relocate to Australia for several years until a dependent child completes their schooling or course of study would not generally be considered to be a decision a reasonable person would make”.

33. The Tribunal canvassed especially with Nuttawut how – if there are not compelling reasons for his absence from Australia now – there are compelling reasons for his absence immediately before he applied for the visa.  His response was that he wants to look after his mother (Nisakorn) (who is now in her sixties); his children are growing up a bit; and more people in the family can now help look after the children.    

34. In Paduano at [53] Crennan J identified the correct question to be “Were the reasons for the absence compelling in that they were forceful?” The reasons for Nuttawut’s absence were that his first partner was pregnant. She had a child who Nuttawut had custody of even for several months after the relationship ended in or about 2007. Even after the child returned to live with her mother, Nuttawut had a relationship with her. Then, in 2010 Nuttawut’s current wife became pregnant. From 2011 to 2014 she had three children who by the date of the visa application had reached the age of four years, three years and nineteen months. The Tribunal accepts the evidence that the family support available to Nuttawut and Kanokwan was initially not as great as it has since become.

35. Considering these matters, the Tribunal is satisfied that the reasons for Nuttawut’s absence are compelling.  In his written statement to the Tribunal Nuttawut said that things were beyond his control.  Whatever may be said about the extent to which Nuttawut may have had control of the situation, as noted in Paduano and recognised in PAM3, the reasons for  his absence need not be confined to those incorporating an involuntary element, involving circumstances beyond his control. 

1. In the Tribunal’s view, in 2005, when Nuttawut learned that Rujiraporn was pregnant and he went back to Thailand, and for the years immediately after that, there were compelling reasons for his absence from Australia.  Then, in the years when Kanokwan was pregnant with the first of the three children he had with her until February 2012, when he applied for the visa, there were compelling reasons for his absence from Australia.  All these years cover the predominant period of Nuttawut’s absence from Australia.  The reasons for Nuttawut’s absence between 2007 or thereabouts, being the time after his relationship with Rujiraporn ended and he ceased to have custody of his first born child, and 2010, the time of Kanokwan’s first pregnancy, may not be regarded as compelling reasons.  The Tribunal actually considers the preferable view to be that the reasons in that time were compelling even if they were relatively less so.  Whatever the position about that, the Regulations do not require that there be compelling reasons for the whole absence.  It is notable that PAM3 states: “Under policy, the department does not require the applicant to demonstrate compelling reasons for their entire absence from Australia. There must however be compelling reasons why they have been absent from Australia for 5 years or more prior to the application being made”.  On this basis there are compelling reasons for Nuttawut’s absence. 

2. The Tribunal is satisfied by the evidence about Nuttawut’s circumstances that there are compelling reasons for his absence from Australia. Accordingly the Tribunal is satisfied that at the time of application, Nuttawut meets cl.155.212(3).

3. 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

4. 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

   John Billings
   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.