Melito (Migration)

[2017] AATA 1479

Melito (Migration) [2017] AATA 1479 (6 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Maria Antoinette Melito

CASE NUMBER:  1704831

DIBP REFERENCE(S):  BCC2017/217637

MEMBER:Kira Raif

DATE:6 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.

Statement made on 06 September 2017 at 3:04pm

CATCHWORDS

Migration – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – Compelling reasons  – Continuous absence from Australia – Caring responsibilities for family members – – Substantial family ties to Australia – No compelling reasons for continued absence

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 155.212, 157.212

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 Immigration on 7 March 2017 to refuse to grant the applicant a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Malta, born in February 1943. She applied to the Department of Immigration for the visa on 6 January 2017. The delegate refused to grant the visa on the basis that the applicant did not meet cl.155.212 because the delegate was not satisfied there were compelling reasons for the applicant’s absence from Australia. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal by teleconference on 6 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother and brother in law. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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).

5. 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.

6. In this case, the applicant is seeking to meet cl.155.212(3A). The applicant does not claim to meet any of the other subclauses in cl.155.212. Subclause 155.212(3A) 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.

   Does the applicant meet the requirements of clause 155.212?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted permanent residence and first entered Australia in April 1961. She departed Australia in March 1972 and has not travelled to Australia before December 2016.

8. The Tribunal is not satisfied that the applicant was lawfully present in Australia for a period of, or periods that total, not less than 2 years in the period of 5 years immediately before the application for the visa. The Tribunal is not satisfied the applicant meets cl. 155.212(2).

9. According to the primary decision record, and the applicant’s oral evidence to the Tribunal, the applicant was in Australia at the time the application was made. The applicant does not meet cl. 155.212(3). There is no evidence before the Tribunal, and the applicant does not claim, that she is a member of a family unit of a person who has been granted the Subclass 155 visa or meets the requirements for the grant of the visa and has lodged a separate application. The Tribunal is not satisfied the applicant meets cl. 155.212(4).

10. The applicant seeks to meet cl. 155.212(3A). The applicant indicated that many of her relatives reside in Australia and are permanent residents or citizens. The applicant’s evidence to the Tribunal is that four of her siblings and several nieces and nephews live in Australia. The Tribunal is satisfied that the applicant has substantial personal ties which are of benefit to Australia.

11. According to the primary decision record, the applicant entered Australia as a permanent resident in April 1961 and left Australia in March 1972. The applicant confirmed that in her oral evidence to the Tribunal. She had not travelled to Australia until December 2016. The applicant told the Tribunal she travelled to Australia at that time on a Visitor visa that was valid for six months and she left Australia in May 2017.  

12. The Tribunal finds that the applicant has been absent from Australia for a continuous period of 5 years or more since the grant of the visa. The Tribunal must consider if there are compelling reasons for the absence. 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].

13. The applicant claims in her submission to the delegate that she departed Australia in 1972 due to her husband’s work commitments and to look after his parents. The delegate formed the view that these reasons were not compelling but of personal nature. The Tribunal is mindful that one does not exclude the other. In oral evidence to the Tribunal the applicant said that her husband’s parents were sick and elderly and could not live independently and she had to look after them. The applicant said her husband had other siblings but they lived far away and had family commitments while she had no children. The applicant said her parents in law died in 1981 and 1984. The applicant said she then looked after her own parents who were also elderly. Her mother passed away about 10 years ago and her father passed away about 25 years ago. The Tribunal asked the applicant why she did not return to Australia since then. She said she did not think about it then and that her husband did not wish to return to Australia. Now that her husband has passed away and she is alone and her family lives in Australia, she wants to live with her family in Australia.

14. The Tribunal accepts that the applicant looked after her parents and parents in law and that she genuinely believed it was her responsibility to do so. The Tribunal accepts that at least part of the reasons for the applicant’s absence from Australia is her carer responsibilities towards her parents and parents in law. The Tribunal accepts that the applicant later looked after her husband until his death. The Tribunal is prepared to accept that the applicant believed these reasons to be compelling and requiring her presence in Malta. However, the Tribunal does not consider that these reasons continued to exist once the carer responsibilities ended with the deaths of the parents and the parents in law. After that time, there were no compelling reasons for the applicant’s absence and the only reason the applicant remained outside of Australia was because it was her husband’s preference to remain in Malta. The Tribunal accepts that the applicant cared for her parents in law, her parents and subsequently her husband. However, the applicant remained in Malta when such responsibilities ceased. At times when the applicant did not have carer responsibilities, the Tribunal does not consider there were compelling reasons for the applicant’s absence from Australia.

15. The Tribunal has found that the applicant has been absent from Australia for a continuous period of 5 years or more since she was granted most recent permanent visa (there is no evidence she was an Australian citizen). The Tribunal is not satisfied, overall, that there are compelling reasons for the applicant’s absence, for the purpose of cl. 155.212(3A)(b). The Tribunal is not satisfied the applicant meets cl. 155.212(3A). The Tribunal is not satisfied the applicant meets cl. 155.212.

16. The Tribunal accepts that the applicant has been present in Australia for a period of at least 1 day but less than 2 years in the 5 years immediately before the application was made. However, the applicant’s evidence to the Tribunal is that she was in Australia as a holder of a Tourist visa. The Tribunal is not satirised that during the time of her presence in Australia the applicant was a holder of a permanent visa or a permanent entry permit or an Australian citizen. She does not meet cl. 157.212(2). There is no evidence that the applicant is a member of the family unit who has been granted a Subclass 157 visa or meets the requirements of subclause 157.212(2) and has lodged a separate application for the Class BB visa. The Tribunal is not satisfied the applicant meets cl. 157.212(3) and cl. 157.212.

17. The applicant’s and her relatives’ evidence to the Tribunal is that the applicant has been living in Australia and got married in Australia and has significant links to Australia the parties refer to the applicant’s age and her desire to be reunited with her family. The Tribunal accepts the evidence that the visa applicant is self-sufficient and will not be a burden to the government. The Tribunal accepts the evidence that the applicant wants to be reunited with her family in Australia and that she feels lonely in Malta. However, the Tribunal has no discretion in relation to the matters. Having found that the applicant does not meet the requirements for the grant of the visa, the Tribunal has no option but to affirm the decision under review.

    Conclusion

18. For the reasons above, the Tribunal finds the visa applicant does not meet the criteria for the grant of a Subclass 155 and Subclass 157 visas.

    DECISION

19. The Tribunal affirms the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.

    Kira Raif
    Senior Member