MOLLUSO (Migration)

[2018] AATA 1032

MOLLUSO (Migration) [2018] AATA 1032 (22 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Anna Maria Molluso

CASE NUMBER:  1728620

DIBP REFERENCE(S):  BCC2017/2827998

MEMBER:Helena Claringbold

DATE:22 March 2018

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 22 March 2018 at 2:49pm

CATCHWORDS
Migration – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – absent from Australia as a permanent resident for approximately 39 years – Seven siblings and one child and two grandchildren in Australia – Substantial personal ties with Australia – Left Australia with her husband – Husband suffered from depression – Raised a family in Italy – After husband’s death no compelling reasons for the applicant’s absence from Australia

LEGISLATION
Migration Regulations 1994, Schedule 2 cl 155.212

CASES

Lorenzo Paduano v MIMIA [2005] FCA 211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 4 August 2017, Mrs Anna Maria Molluso, the applicant, applied for a Return (Residence) (Class BB) visa. On 30 October 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant met cl.155.212(3A)(b) of Schedule 2 to the Migration Regulations1994 (the Regulations) of the Migration Act 1958 (the Act).

2. 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. On 15 March 2018, the applicant appeared before the Tribunal to give evidence and present arguments. She provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Mr Cosimo Mascitti, Ms Elisabetta Tagliavento,  Ms Guilia Angotzi and Ms Maria Elizabeth Pizzardi. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection’s case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in this case is whether the applicant can meet cl.155.212(3A)(b) of Schedule 2 to the Regulations.

   CLAIMS AND FINDINGS

   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(3A)(b) of Schedule 2 to the Regulations. The applicant does not claim to meet any of the other subclauses in cl.155.212. As the applicant was in Australia at the time of application, the applicant cannot meet cl.155.212(3).

   Does the applicant meet the requirements of cl.155.212?

9. The primary decision record indicates that on 15 February 1967 the applicant entered Australia, with her parents and siblings, as a permanent resident. On 14 June 1978, the applicant’s last permanent residency visa was granted. On the evidence provided by the applicant she last departed Australia as a permanent resident on 1 April 1980. In the two years prior to the visa application, the applicant spent approximately nine months in Australia. The Tribunal is not satisfied that the applicant was lawfully present in Australia for a period of, or periods that total, not less than two years in the period of five years immediately before the application for the visa. The Tribunal is not satisfied that the applicant meets cl.155.212(2) of Schedule 2 to the Regulations.

10. According to the primary decision record and the applicant’s evidence at the Tribunal hearing, the applicant was in Australia at the time the visa application was made. The Tribunal is not satisfied that the applicant meets cl.155.212(3) of Schedule 2 to the Regulations.

11. There is no evidence and the applicant does not claim to be a member of the family unit of a person who has been granted a Subclass 155 visa or meets the requirements for the grant of the visa and has lodged a separate visa application, The Tribunal is not satisfied that the applicant meets cl.155.212(4) of Schedule 2 to the Regulations.

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

12. Sub Clause 155.212(3A), as extracted in the attachment to this decision, 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.

13. The applicant provided evidence that her seven siblings and one child and two grandchildren  are permanent residents or citizens of Australia. The Tribunal is satisfied that the applicant has substantial personal ties with Australia that are of benefit to Australia.

14. 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?

15. In addition to having substantial ties with Australia, cl.155.212(3A) requires that unless there are compelling reasons for the absence, the applicant has not been absent from Australia for a continuous period of five years or more since the date the applicant’s most recent permanent visa was granted or the date he or she ceased to be a citizen.

16. 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].

17. On the evidence, in February 1967, the applicant entered Australia as a permanent resident. In June 1978, she was granted her last permanent residency visa. In April 1980, the applicant departed Australia as a permanent resident. Since that time she entered and departed Australia as the holder of Electronic Travel Authority’s and tourist visas.  It is more than 39 years since the applicant’s last permanent visa was granted.

18. The Tribunal finds that the applicant has been absent from Australia for a continuous period of five years or more since the grant of her last permanent residency visa. 

19. Accordingly the Tribunal is not satisfied that at the time of application, the applicant meets the prescribed residency requirements.

    Are there compelling reasons for any ‘continuous’ absence from Australia?

20. The Tribunal must now consider whether there are compelling reasons for the absence. According to Departmental guidelines (PAM3), the purpose of the return (residence) visa is to facilitate the re-entry into Australia of non-citizen permanent residents, former permanent residents and former citizens and ensure that only those people who have a genuine commitment to residing in Australia, or who are contributing to Australia’s well-being, retain an eligibility to return to Australia as permanent residents.

21. On 1 April 1980, the applicant last departed Australia as a permanent resident.  The applicant must provide compelling reasons for her absence from Australia since 1985. On 4 August 2017, the applicant lodged the application for a return resident visa.

22. The applicant’s evidence is that she departed Australia in 1980 because her husband Mr Silvio Mascitti was in ill health and suffered from depression.  Silvio longed to return to live in Italy and wanted to care for his father, Erasmo Mascitti.  At that time, the applicant had one child and was expecting another child. She told the Tribunal that she made the difficult decision to go to Italy to live with her husband and to leave her family in Australia.  In the coming years, the applicant cared for Erasmo until he died in1984. Erasmo bequeathed his house and some land to the applicant.  The applicant and her son told the Tribunal of their difficult life in Italy.  They stated that Silvio’s health and well-being deteriorated further, he had bouts of depression, he attempted suicide several times and he needed constant care.  During these times the applicant and her children worked their farm and the applicant worked in various roles to support the family, make mortgage payments and provide for their day-to-day needs. The applicant and her children continued to care for Silvio until his death on 5 March 2009. The Tribunal was told that after Silvio’s passing, the family had accumulated debt.  However, when the applicant returned to Australia in 2009, her father provided her with the financial support and this allowed her to clear the debts in 2009.

23. Other information is that the applicant’s family in Australia provided for her visits to Australia.  Since the applicant’s departed Australia in 1980, she has been in Australia for the following periods of time: in 1997 approximately seven weeks; in 2004 approximately  four weeks; in 2009 after Silvio’s death one month; in 2012, one month; in 2014/2015 nine months; in 2015, another three months and in 2016 six months.  On 27 January 2017, the applicant entered Australia and has not departed since that time.

24. The Tribunal was told that the applicant’s daughter is married and lives in Italy and one son lives in Boston, USA with his wife and children.  Cosimo, the applicant’s other son returned to Australia in 2014 and lives in Australia with his wife and two children.  He told the Tribunal that he would like his mother to be able to live in Australia; and she could assist his family.  Cosimo spoke of the difficulties he faced because of his father’s illness.  He spoke of a harsh childhood and working through school holidays and after school. The other witnesses provided consistent evidence with that of the applicant and Cosimo and of their wish for the applicant to remain in Australia.

25. The Tribunal considered the evidence individually and as a whole. The Tribunal accepts that Silvio had the medical and psychological conditions as claimed. It accepts that the applicant provided care for Erasmo and for Silvio until their deaths. The Tribunal is satisfied that at least part of the reasons for the applicant’s absence from Australia was her carer and family responsibilities. The Tribunal does not accept that these reasons continued to exist once the carer responsibilities ended with the death of Erasmo in 1984, and Silvio in 2009. The applicant told the Tribunal that she had left it too long to come back.  She stated that she renovated the house left to her by Erasmus and she and her daughter are joint owners of the house. She said that the family continued to work the farm after Silvio’s death.  She stated that after selling some of the land left to her by Erasmus, she still owns one acre of land in Italy. The applicant has been absent from Australia as a permanent resident for approximately 39 years.  With the exception of her visits to Australia, she has primarily, lived in Italy.  She raised a family, renovated a house, worked a farm and managed day-to-day matters in Italy. The Tribunal is of the view that after Silvio’s death in 2009, there were no compelling reasons for the applicant’s absence from Australia and it was her preference to remain in Italy where she cleared her debts and continued to live.

26. Given the findings above, the applicant does not meet the requirements of cl.155.212(3A).

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

    Subclass 157

28. The applicant does not claim and there is no evidence before the Tribunal that the applicant meets the criteria for a Subclass 157 visa.

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

30. DECISION

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

    Helena Claringbold
    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).

    …

    (3A)The applicant meets the requirements of this subclause if the applicant is in Australia, and the Minister is satisfied that the applicant:

    (a)has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia; and

    (b)has not been absent from Australia for a continuous period of 5 years or more since:

    (i)the date of grant of the applicant's most recent permanent visa, unless there are compelling reasons for the absence; or

    (ii)the date on which the applicant ceased to be a citizen, unless there are compelling reasons for the absence.