Miclat (Migration)

[2020] AATA 3900

Miclat (Migration) [2020] AATA 3900 (15 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Christopher Miclat

VISA APPLICANT:  Mr Michael MICLAT

CASE NUMBER:  1833540

HOME AFFAIRS REFERENCE(S):          01164490 CLF2017/57258

MEMBER:Michael Cooke

DATE:15 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.155.212(3) of Schedule 2 to the Regulations

Statement made on 15 July 2020 at 2:20pm

CATCHWORDS

MIGRATION – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – substantial ties to Australia of benefit to Australia – residency requirements – significant number of family members in Australia – no absence from Australia over 5 years – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 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 11 September 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 13 July 2017. 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 the visa applicant had not provided evidence of substantial ties to Australia which are of benefit to Australia.

4. The review applicant appeared before the Tribunal on 15 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

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 provided evidence of substantial ties to Australia which are of benefit to Australia.

   Lawful presence/substantial ties

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 he or 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 review applicant (stepbrother) has indicated in the hearing that a significant number of family members being the visa applicant’s stepbrothers and stepsisters are resident in Australia. His only other sibling is his sister in Dubai. His stepbrother spoke of the closeness of the family. Despite being in different parts of Australia all communicate with each other via telephone or social media.

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

    Does the applicant meet the prescribed residency requirements?

13. 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).

14. The Tribunal finds that the visa applicant holds a permanent visa or last left Australia as a permanent resident and has not been continuously absent from Australia for 5 years or more immediately before the visa application.

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

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

17. 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

18. 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(3) 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.