Pacciolla (Migration) - [2018] AATA 4550

Pacciolla (Migration) [2018] AATA 4550 (11 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Adriana Pacciolla
CASE NUMBER:  1621392
HOME AFFAIRS REFERENCE(S):           BCC2016/3776634
MEMBER:John Billings
DATE:11 September 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.

Statement made on 11 September 2018 at 5:46pm
CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – compelling reasons for extended absence –responsibility for raising children as a single parent – desire to return to Australia after children grew up – health concerns – sons willingness or ability to provide care – personal ties to Australia – ties with church community– Ministerial intervention referral – ‘unique or exceptional circumstances’– decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2 cls 155.211, 155.212
CASES
Paduano v MIMIA [2005] FCA 211
MILGEA v Kurtovic [1990] FCA 22
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 25 November 2016 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).
The applicant, Ms Pacciolla, applied for the visa on 8 November 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.
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(3A). This provides in particular that an applicant meets the requirements of the sub-clause if the applicant is in 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 since the date of grant of the applicant’s most recent permanent visa, unless there are compelling reasons for the absence.
The delegate refused to grant the visa on the basis that Ms Pacciolla did not meet any sub-clause of cl.155.212. In relation to cl.155.212(3A), the delegate was satisfied that Ms Pacciolla was in Australia and had substantial ties to Australia with Australia that were of benefit to Australia. The delegate however noted that Ms Pacciolla had been absent from Australia for a continuous period of five years or more since the date of grant of her most recent permanent visa. The delegate considered that there are not compelling reasons for the absence.
Ms Pacciolla has previously applied for and been refused a Return (Residence) visa. She applied on 26 October 2012. The visa was refused on 8 February 2013. After a hearing held on 2 July 2013 the MRT (Migration Review Tribunal) (differently constituted) affirmed the decision to refuse the visa but referred the matter to the Minister to consider an exercise of discretion under s.351 of the Act: MRT case number 1303012. The Minister exercised the discretion favourably and on 27 July 2016 Ms Pacciolla was granted a Class FA Subclass 600 Visitor visa valid for six months. Ms Pacciolla currently holds a Bridging A visa.
Ms Pacciolla applied for review of the decision now under review on 14 December 2016. She provided a copy of the primary decision to the Tribunal.
Ms Pacciolla appeared before the Tribunal on 10 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from her son, Mr Roberto Mazzola (“Roberto”). The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages.
Ms Pacciolla was represented in relation to the review by her registered migration agent. The representative did not attend the hearing.
Ms Pacciolla is a 78 year old national of Italy. She is divorced. On 3 August 1960, at the age of 20 years, Ms Pacciolla first arrived in Australia as a permanent resident under the Australian Italian Migration Assisted Scheme. She met her ex-husband on the voyage to Australia and then when he visited her sister, Fiorina, who had already come to Melbourne. Ms Pacciolla was then living with her sister. The two formed a relationship and married in Australia in 1963. Ms Pacciolla has three sons – Roberto, aged 51, Giovanni, aged 44, and Riccardo, aged 42. Roberto and Giovanni were born in Australia. Riccardo was born in Italy. Ms Pacciolla does not have contact with her ex-husband but her sons do from time to time.
In Australia Ms Pacciolla worked as a dressmaker. She and her husband acquired two residential properties in Melbourne. The properties were sold in the 1970s, in circumstances described below.
Roberto is an Australian citizen. He returned to Australia in 2008. Ms Pacciolla lives in Melbourne with Roberto and his wife and their two pre-school aged children. Her two other sons and her ex-husband live in Italy. Giovanni is not married. Riccardo is married with two children.
Ms Pacciolla receives an Australian Aged pension. Roberto is the only family member to provide any material support to her.
After nearly 14 years in Australia Ms Pacciolla departed Australia with her older two sons on 6 June 1974. Her sister, Fiorina, left in 1973 and has not returned. On 28 July 2012, over 38 years after she left Australia, Ms Pacciolla re-entered Australia holding a Class UD Subclass 976 Electronic Travel Authority. She has remained here since that time.
When Ms Pacciolla and her family returned to Italy they went first to live in the place in southern Italy where her ex-husband lived before he came to Australia. After a period of time in Italy she wanted to return to Australia but was “shocked” to learn that her ex-husband had sold the two properties in Melbourne. (The return to Italy was described as a “holiday” in a written submission to the Department on Ms Pacciolla’s behalf dated 7 November 2016, but in a statutory declaration dated 25 October 2012 Ms Pacciolla said that in 1974 she and her ex-husband decided that they should return “to live in Italy” and that on 6 June that year they left with their sons “to live in Italy”. She did also declare that it had always been her intention to return to live permanently in Australia).
Ms Pacciolla alleges that her ex-husband sold the properties fraudulently behind her back. Her ex-husband claimed that the proceeds were minimal but she believes he shared the proceeds with his siblings. He gave her some money (20 million lire[1]) after she obtained legal assistance. He left the marriage in the late 1970s or early 1980s, not long after Riccardo was born. According to the submission, as it was then culturally unacceptable to separate from a spouse to obtain a divorce the parties did not divorce until the year 2004. For several years Ms Pacciolla continued to live in the same place, desperately trying to earn an income, support her children and pay the mortgage on an apartment she had bought. She lost the apartment when she could not keep up the payments. At the invitation of her sister, Fiorina, who was living in northern Italy, Ms Pacciolla and her sons went to northern Italy where she rented a house from 1980 or thereabouts.
[1] Ms Pacciolla told the Tribunal that 20 million lire at the time is the equivalent of 10,000 euros now. (10,000 euros is now approximately AUD 16,300).
After Roberto came to Australia he was in regular contact with Ms Pacciolla. He became concerned to hear from Riccardo in 2012 that Ms Pacciolla had been hospitalised with severe bronchitis. She had been living in dilapidated rented accommodation. Riccardo and Giovanni were unable or unwilling to look after her. During her hospitalisation Ms Pacciolla was diagnosed with hypertensive heart disease. Roberto went to Italy and arranged to transfer Ms Pacciolla and her belongings to Australia.
These further submissions were made on behalf of Ms Pacciolla in November 2016. Ms Pacciolla always wanted to return to Australia but she lacked funds as she was providing for her sons and when they reached adulthood they developed their own careers and personal ties to Italy. Ms Pacciolla’s inability to return to Australia was due to factors beyond her control, being the fraudulent conduct by her ex-husband that deprived her of assets including a house that she could have returned to in Australia. She had to stay in Italy until her youngest child had turned 18 years and completed his studies. (Riccardo turned 18 at the end of 1993). Cultural norms meant that she could not “abandon” her sons, even as adults, unless they were sistemati (settled and married). Further, Ms Pacciolla had no close relatives in Australia to assist with relocation and settlement. By the time Riccardo reached adulthood Australia had implemented a points test based General Skilled Migration Program under which Ms Pacciolla would have been ineligible given her age and lack of vocational English.
Giving oral evidence on 10 September 2018 Ms Pacciolla said that she had wanted to return to Australia with her sons. The Tribunal asked whether she intended to return to Australia even after her sons reached adulthood and at least one had started his own family (so that she might be returning without them), Ms Pacciolla confirmed that she had never wanted to come back to Australia on her own.
Ms Pacciolla made plans to visit Italy from May to September this year. There was a hearing scheduled in June 2018 that was postponed at Ms Pacciolla’s request because of those plans. The Tribunal was subsequently informed that she did not make the trip because she was not well enough. Ms Pacciolla told the Tribunal that she had been planning to rent accommodation near where Riccardo lives rather than stay with him and his family. She was unable to travel because she was admitted to hospital to undergo various tests. No medical or other expert evidence has been submitted to the Tribunal concerning Ms Pacciolla’s health. She described her health as getting better slowly.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Ms Pacciolla has made two applications for a Return (Residence) (Class BB) visa. The issue in the present case is essentially the same issue that was considered by the MRT in 2013. Unsurprisingly, given the adverse findings made by the MRT, there was no submission that issue estoppel applies. The question whether issue estoppel applies to AAT decisions is not settled: see MILGEA v Kurtovic [1990] FCA 22 at [49]. The Tribunal has considered the matter afresh.
To be eligible for the visa, 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: cl.155.212(2),(3), (3A) and (4).
The evidence would not support any claim that Ms Pacciolla meets subclause (2),(3) or (4) of cl.155.212. This is because – at the time she made the visa application – Ms Pacciolla was not, during the relevant period preceding the making of the visa application, the holder of a permanent visa or permanent entry permit (cl.155.211(2)); she was not outside Australia (cl.155.211(3)); and she was not the member of the family unit of a person granted a Subclass 155 visa or other relevant person (cl.155.211(4)).
The issue is whether she meets cl.155.212(3A). Clause 155.212(3A) is set out in the attachment to this decision record.
Are the requirements of subclause 155.212(3A) met?
Subclause 155.212(3A) – a time of application criterion - relevantly provides that the applicant meets the requirements of the subclause if the applicant is in 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 has not been absent from Australia for a continuous period of 5 years or more since the date of grant of the applicant's most recent permanent visa, unless there are compelling reasons for the absence.
On the basis of Ms Pacciolla’s written and oral evidence, confirmed by the Department’s records, the Tribunal finds that she was in Australia at the time of application.
Does the applicant have substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia?
On the basis of the evidence before it, the Tribunal is satisfied that at the time of application Ms Pacciolla had substantial personal ties with Australia which are of benefit to Australia.
The Tribunal accepts that of all Ms Pacciolla’s sons it is Roberto, her eldest, who for years has undertaken the responsibility to ensure Ms Pacciolla’s welfare. As Roberto’s family grows it is intended that Ms Pacciolla will live separately but the Tribunal accepts that Ms Pacciolla has been living with him and his wife and young children in Australia since 2012. In the meantime there are friends and members of her church community with whom she also has ties. On the basis of the evidence concerning the time that Ms Pacciolla has spent in Australia especially since 2012 and the relationship she has with Roberto and his family, the Tribunal finds that Ms Pacciolla has substantial personal ties with Australia that are of benefit to Australia.
Does the applicant meet the prescribed residency requirements?
In addition to having substantial ties to Australia, cl.155.212(3A) relevantly requires that the applicant has not been absent from Australia for a continuous period of 5 years or more since the date of grant of his or her most recent permanent visa, unless there are compelling reasons for the absence.
There is no controversy in relation to the following matters. Ms Pacciolla arrived in Australia in 1960 as a permanent resident and she departed in 1974. She returned to Australia in 2012 holding a temporary visa. Ms Pacciolla has been absent from Australia for a continuous period of 5 years or more since she was granted permanent residency. She was absent for approximately 38 years. The question is whether there are compelling reasons for the absence from 1979 (five years after 1974) to 2012. In determining that the Tribunal has regard to relevant matters at and after the time Ms Pacciolla departed Australia in 1974.
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].
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 for any absence(s) from Australia greater than 5 years duration”.
Seven examples are given in PAM3 of what could amount to compelling reasons. Ms Pacciolla’s situation does not precisely match any of those examples, though that would of course not be fatal to her application. One example given in PAM 3 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”.
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 Tribunal deals first with the financial and cultural reasons given for Ms Pacciolla’s absence from Australia.
The Tribunal considers that Ms Pacciolla and Roberto genuinely sought to give truthful and reliable evidence to the Tribunal, though there were some points of confusion and contradiction. For instance, the statement in written submissions that Ms Pacciolla and her ex-husband and older two children went to Italy in 1974 for a holiday is at odds with Ms Pacciolla’s declaration that they went there to live. The evidence regarding the disposal of property in Australia is essentially limited to Ms Pacciolla and Roberto’s understanding and belief. Among other things, the Tribunal heard that lawyers in Italy who acted for Ms Pacciolla were ineffectual: she believed they were also acting for her ex-husband or were influenced by his father’s position in the community. Whether or not the money she was able to have her ex-husband pay her was a portion of the proceeds of sale of property in Australia, the Tribunal accepts that Ms Pacciolla and her sons were abandoned by him meaning that she was left with the very great responsibility of providing for the family. Roberto told the Tribunal about the very substantial sacrifices he remembers his mother making during this time. By the mid-1990s Ms Pacciolla’s sons had reached adulthood. The Tribunal accepts that over the years Ms Pacciolla expressed to Roberto and others in the family a desire to return to Australia. Whether she had the intention to return to Australia is not the same thing. There is no evidence that she made any inquiries about returning to Australia or took any practical steps towards that. She told the Tribunal this month that it was her lack of money that stood in the way to her returning. She had wanted to bring her sons to Australia. She conceded that she would never have come back to Australia on her own. Even after her sons reached adulthood and began making their own lives Ms Pacciolla remained for many years in Italy. It is significant that it was not until Roberto had been in Australia for about four years that Ms Pacciolla returned to Australia. The Tribunal is not satisfied that these reasons for Ms Pacciolla’s absence are compelling.
The Tribunal does not consider that the other reasons put forward for Ms Pacciolla’s absence are compelling. The lack of close family in Australia – that is, until Roberto returned to Australia - would not reasonably compel her not to return if it had seriously been her intention to return. And if she were ineligible for a class of visa that required a particular level of English that would not have precluded her from applying for other visas.
The health reasons given for Ms Pacciolla’s absence highlight her hospitalisation towards the beginning of the year that she returned to Australia. The Tribunal has taken into account the claims that generally her health deteriorated during the time she was living on her own in Italy. The Tribunal however does not consider that this was a compelling reason for her absence from Australia.

The submissions made on 7 November 2016 refer to numerous other cases in which Italian nationals were said to have made successful applications. There is minimal information provided about those persons. In relation to one woman who was granted a visa, the submissions refer to “protracted family law litigation [taking a total of eight years] which resulted in the applicant losing her permanent residence”. Each case must of course be considered according to its individual circumstances. In the present case there is no evidence of any circumstances of the kind just mentioned or other compelling reasons for Ms Pacciolla’s absence.
In summary, the Tribunal is not satisfied that there are compelling reasons for Ms Pacciolla’s absence from Australia. Accordingly the Tribunal is not satisfied that Ms Pacciolla meets the prescribed residency requirements in cl.155.212(3A).
The Tribunal therefore finds the Ms Pacciolla does not meet the criteria for the grant of a Subclass 155 visa.
On the basis of Ms Pacciolla’s evidence set out above the Tribunal finds that she did not have compelling reasons for departing Australia in 1974. She would therefore not meet the criteria for a Subclass 157 (Three Month Resident Return) visa: see cl.157.212(2).
REFERRAL TO THE MINISTER
Section 351 of the Act provides that if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. In deciding whether to refer the matter to the Minister for consideration under s.351 the Tribunal has had regard to the President’s Direction Conducting Migration and Refugee Reviews, especially at paragraphs 16.1 – 16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J) available in PAM3 (“the Minister’s Guidelines”).
The Tribunal notes that Ms Pacciolla is in the community and that she holds a bridging visa. The material before the Tribunal indicates that there no serious if any compliance or other concern about her.
Among other things, the Minister’s Guidelines state that the Minister may consider exercising his discretion in cases that exhibit one or more “unique or exceptional circumstances”. The Guidelines then identify factors that may be relevant, individually or cumulatively, in assessing whether a case involves unique or exceptional circumstances.
The factors include “compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person”.
The Tribunal has noted that Ms Pacciolla is aged 78 years. No medical or other expert evidence has been submitted to the Tribunal. The Tribunal received only very general oral evidence concerning her health. The Minister may wish to consider current medical or other expert evidence if that is provided to him. The Tribunal notes, however, that it accepts the evidence that especially during the period when Ms Pacciolla was living alone in Italy her health deteriorated to the point where Roberto considered that he needed to bring her to Australia in order to make sure that she was properly cared for.
There also appear to be strong compassionate circumstances concerning Roberto given the role he has undertaken for many years now to ensure Ms Pacciolla’s welfare.
The length of time that an applicant has been in Australia and his or her level of integration into the Australian community appear in the Minister’s Guidelines as a separate factor. Ms Pacciolla was in Australia for 14 years from 1960 to 1974 and she has been in Australia for over six years since July 2012. The Tribunal heard about her involvement in the life of her family and in her church.
Examining relevant factors individually and cumulatively, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.
The Tribunal notes the Minister’s Guidelines refer to “repeat requests” to intervene, indicating that only in limited circumstances may a repeat request be referred to the Minister. Those circumstances include a significant change in circumstances that raise new, substantive issues and the Department assesses that the new substantive issues fall within the “unique or exceptional circumstances” set out in the Guidelines.
By implication, the concern expressed in the Minister’s Guidelines is about a repeated request after the Minister or another Minister has declined to intervene or consider intervening. In Ms Pacciolla’s case a Minister did intervene and she was granted a visa.
The submissions made on 7 November 2016 refer to the exercise of Ministerial discretion in 2016 and the reasons why, after she was granted the Class FA Subclass 600 Visitor visa, Ms Pacciolla made a further application for a Return (Residence) (Class BB) visa rather than an application for another class of visa. If a request to intervene is now deemed a “repeat request”, the Minister may wish to consider current medical or other expert evidence, or other material, in relation to whether the present circumstances warrant consideration of another request to intervene, if such evidence is provided.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.
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).
…
(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.