Pienaar (Migration)

[2021] AATA 2707

Pienaar (Migration) [2021] AATA 2707 (17 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Michelle Wilma Pienaar

CASE NUMBER:  1915253

HOME AFFAIRS REFERENCE(S):          BCC2018/2581468

MEMBER:Michael Cooke

DATE:17 June 2021

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.155.211 of Schedule 2 to the Regulations; and

·cl.155.212(3A) of Schedule 2 to the Regulations.

Statement made on 17 June 2021 at 3:44pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – residency/citizenship requirement – substantial ties criterion – substantial cultural and personal ties with Australia – ‘of benefit to Australia’ – prescribed residency requirements – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 155.211, 155.212

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 Home Affairs on 24 May 2019 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 10 July 2018. 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(3A) because he was not satisfied that the applicant had provided evidence of substantial ties that are of benefit to Australia.

4. The applicant was requested by the Tribunal to provide a submission addressing the adverse findings in the delegate’s decision.

5. On 17 June 2021 the applicant’s representative provided a comprehensive submission and additional information for the edification of the Tribunal.

6. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant has provided evidence of substantial ties that are of benefit to Australia. Also, that the applicant has ‘compelling reasons for the absence’ from Australia for a continuous period of 5 years or more since the date the applicant’s most recent permanent visa was granted.

   Does the applicant meet the residency/citizenship requirement?

9. Clause 155.211 requires that at the time of application the applicant either:

   ·is an Australian permanent resident; or

   ·was an Australian citizen but has subsequently lost or renounced Australian citizenship; or

   ·is a former Australian permanent resident, other than a former Australian permanent resident whose most recent permanent visa was cancelled.

10. The Tribunal finds that the applicant is a former Australian permanent resident, other than a former Australian permanent resident whose most recent permanent visa was cancelled.

11. Accordingly, the applicant meets cl.155.211.

    Lawful presence/substantial ties

12. 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.

13. 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. As the applicant was in Australia at the time of application, the applicant cannot meet cl.155.212(3).

    Does the applicant meet the substantial ties criterion?

14. Subclause 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.

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

15. The applicant has addressed this criterion in her recent submission as follows:

    The applicant is a 62-year-old, born on 15 April 1959 and is a citizen of the Netherlands and South Africa. The applicant arrived as an Australia permanent resident on 15 December 1985 with her then Australian husband, John Van de Loon and Australian infant child, Joel Van de Loon. The family initially arrived in Perth and spent time residing and working first in Geraldton and then in Karratha, Western Australia. When the applicant fell pregnant with their second child, the couple decided that they would relocate to Noosa, Queensland where they decided to make their home.

    During this time the applicant’s oldest sister, Vivienne Redman, was diagnosed with multiple sclerosis back in South Africa. With the diagnosis Vivienne’s husband left her and their 8-year-old daughter, Taryn Redman, with no financial support. The applicant’s sister and niece had no option but to move in with the applicant’s parents Elizabeth Catherina Wilhelmina Pienaar and Desmond Villiers Pienaar.

    The applicant’s sister had no private medical coverage and dealing with the public health services was daunting and emotionally and financially straining on the applicant’s parents.

    It is with these awful circumstances that the applicant and her husband decided that they had a moral obligation to return to South Africa to assist the applicant’s sister and her parents. In March 1988, the whole family including their new 6-week-old daughter, Tarnah Van de Loon departed Australia and returned to South Africa.

    On return to South Africa the applicant and her husband did the best that they could to find employment that would facilitate a life for themselves and their children while supporting her sister and parents. They started their own parasailing business on Durban beach with her husband in charge of operations and the applicant having the daily care of two young children assisted with marketing and daily operational duties. This also enabled the applicant to assist taking her sister to doctors’ appointments.

    After the abolition of apartheid, the applicant’s business suffered financial pressures and the applicant’s husband needed to take employment in salvage restoration which meant that he spent weeks and months away from his family which eventually ended in the applicant’s marriage breakdown in 1994.

    From November 1991 the applicant obtained employment with then business Thomas Cook Travellers cheques working from home so that she would continue to raise her two children and also assist her sister with medical appointments.

    Gradually the applicant’s sister’s daily functional abilities deteriorated, and she progressed to a wheelchair. The applicant, to help her sister attend appointments and treatments would need to physically pick her up, carry her to the car, get her out and place her in the wheelchair. It often involved lengthy travel and long waits in clinics. The applicant provided a high level of assistance to her sister until she sadly passed away on 27 Aug 2008 of cancer.

    The death of the applicant’s sister did not relieve the applicant of her obligation to remain in South Africa. At the time of Vivienne’s death, most of her parent’s savings had been spent in the preceding decades helping to care for the applicant’s sister and the applicant continued to feel emotionally, physically and financially compelled to help them. This was aggravated when her 85-year-old mother took a serious fall fracturing her femur. The applicant purchased a home to accommodate her parents in June 2013.

    In March 2017 the applicant’s Australian daughter, Tarnah Blane, her husband, Raymond Blane and their Australian daughter Shyrah returned to live in Australia permanently and the applicant travelled and spent time with them in 2017. This time with her family in Australia reinforced her desire to return to Australia permanently.

    Sadly, in December 2017 the applicant’s mother passed away. As a result, the compelling reasons to remain in South Africa had now diminished as the applicant’s father was able to be well cared for by the applicant’s middle sister Patricia, and he encouraged the applicant to travel to Australia and be reunited with her children and grandchild.

    The applicant immigrated permanently to Australia on 17 June 2018 and lived with her Australian daughter, Tarnah assisting her and her husband Raymond with their business by caring for her granddaughter and newly born grandson Jarrah with school/daycare pickups/drop offs and any school activities and assisting with any and all household chores. To say that she has provided an invaluable level assistance to her daughter’s family is a gross understatement and her physical daily presence in their lives is of substantial benefit to this Australian family.

16. The Tribunal is satisfied from the additional information that the applicant has proven that she has ‘substantial cultural and personal ties with Australia’ which are, furthermore, patently ‘of benefit to Australia’.

17. Accordingly, the Tribunal is satisfied that at the time of application the applicant had met the requirement.

    Does the applicant meet the prescribed residency requirements?

18. 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 5 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.

19. 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].

20. The applicant migrated as a permanent resident on 14 August 1985. The applicant made first entry on 15 December 1985. The applicant was granted a BF-R visa on 07 March 1987 which ceased on 03 March 1991. The applicant then spent 3 years in Australia and departed in March 1998 and lived overseas until she visited Australia on a Tourist visa in June 2017. In July 2018, while being onshore, the applicant lodged the application for a Subclass 155 visa – the subject of this review.

21. Therefore, the applicant had not been absent from Australia for a continuous period of 5 years or more since the date that her most recent permanent visa was granted.

    Whether under the above circumstances there are ‘compelling reasons for the absence’?

22. The Tribunal has examined the recent submission from the applicant in light of the rubric in Paduano. Patently the applicant had several ‘forceful’ reasons for her absence - primarily occasioned by ‘moral necessity’. The Tribunal, furthermore, finds these reasons to be ‘compelling’ by reason of their forcefulness.

23. The Tribunal finds further that they are sufficiently ‘compelling’ to ground waiver of the requirement that ‘the applicant has not been absent from Australia for a continuous period of 5 years or more since the date that the applicant’s most recent permanent visa was granted’. Accordingly, the Tribunal is satisfied that at the time of application, the applicant meets the prescribed residency requirements. Thus the applicant meets cl.155.212(3A).

24. 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

25. 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.155.211 of Schedule 2 to the Regulations and

    ·cl.155.212(3A) 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).

    …

    (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.