Pratap (Migration)

[2020] AATA 5929

Pratap (Migration) [2020] AATA 5929 (5 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Satish Pratap

VISA APPLICANT:  Mr Chand Pratap

CASE NUMBER:  2004187

HOME AFFAIRS REFERENCE(S):          16233087801 CLF2020/13662

MEMBER:Hugh Sanderson

DATE:5 November 2020

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 5 November 2020 at 1:22pm

CATCHWORDS
MIGRATION –subclass 155 (Five Year Resident Return) visa – a successful business in Fiji ­- no continuing business or employment interests in Australia – substantial ties criterion not met -– decision under review affirmed

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 18 December 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 September 2019. 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).

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.155.212(3) because the delegate was not satisfied the visa applicant had substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.

   Background

4. The review applicant is the brother of the visa applicant. He is an Australian citizen.

5. The visa applicant was born in Fiji and is a citizen of Fiji. He is currently 74 years old. He has three children, Sandeep who is currently 43 years old, Sanjesh who is currently 41 years old and Prince Sanjesh who is currently 11 years old.

6. The visa applicant was granted a Subclass 105 Skilled Australian Linked visa on 21 June 1999. Sandeep and Sanjesh were granted the same visa as members of the family unit of the visa applicant at that time. They all travelled to Australia on that visa on 10 July 1999. The visa applicant and Sanjesh departed Australia on 18 July 1999, with Sanjesh returning to Australia on 23 January 2000. Since then, both Sanjesh and Sandeep have remained living primarily in Australia and are now Australian citizens.

7. The visa applicant’s movement records show that since being granted the Subclass 105 visa he has been in Australia over the following periods:

   ·From 10 July 1999 to 18 July 1999;

   ·From 18 May 2008 to 30 May 2008;

   ·From 24 September 2008 to 30 September 2008; and

   ·From 23 December 2018 to 6 January 2019.

8. The visa applicant has been granted a series of Subclass 155 Return Resident visas at the following times:

   ·On 11 May 2004 valid to 11 May 2009;

   ·On 18 February 2014 valid to 3 February 2015;

   ·On 3 February 2015 valid to 3 February 2016;

   ·On 3 February 2016 valid to 3 February 2017;

   ·On 3 March 2017 valid to 16 February 2018; and

   ·On 16 February 2018 valid to 16 February 2019.

9. The visa applicant applied for a further Return Resident visa on 10 September 2019. In a letter provided by the review applicant in support of the application, it was stated that he wanted to invite his brother to visit him for a holiday.

10. The visa applicant provided various documents to the Department including evidence of his business and property in Fiji and details of his arrangements being made to sell the property. He provided details of his eldest two sons’ study in Australia.

11. The delegate who consider the application noted that the visa applicant had not spent two years in Australia since last departing on 30 September 2008 or more recently on 6 January 2019. It was noted that in the five years since the grant of the Return Resident visa on 18 February 2014 he had spent only 15 days out of 1811 days in Australia. The delegate noted that the visa applicant had some family in Australia, but his personal ties were not substantial. The delegate was not satisfied the visa applicant had substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia. Accordingly, the delegate found the applicant did not meet the criteria in cl.155.212(3). As no claim had been made and the visa applicant met any of the alternate criteria the application was refused.

    Information to the Tribunal

12. The visa applicant provided a statement to the Tribunal where he claimed that the reason he had not spent more time in Australia was that he was having difficulty disposing of his assets in Fiji. He said that he also had the care of his son, Prince Sanjesh, who had been granted permanent residence in Australia which was due to expire in 2023 and he wanted to move to Australia before that happened. He claimed that with the sale of his business and property he would have sufficient funds to buy a home in Australia unencumbered.

13. The visa applicant provided various documents to the Tribunal including evidence of delays in obtaining a survey on his property, evidence of his savings, birth certificates of his children, and evidence of transfer of money to his children in Australia.

14. Prince Sanjesh was granted a Subclass 101 Child visa on 23 March 2018. He was sponsored for the visa by the visa applicant. The only time he has spent in Australia was when he travelled with the visa applicant, arriving on 23 December 2018 and departing on 6 January 2019.

15. The review applicant appeared before the Tribunal by telephone on 5 November 2020 to give evidence and present arguments. The Tribunal also received evidence by telephone from the visa applicant.

16. The review applicant gave evidence in support of the application. He provided details of his situation in Australia. He said that he was married with three children all of whom live with him and his wife. He said that he talks to his brother every week.

17. The review applicant provided details of the visa applicant’s life in Fiji. He said that the visa applicant does not have any continuing relationship with his sons who live in Australia. He said that the visa applicant had visited Australia on a number of times and he likes Australia but lives in Fiji. He said that his age would prevent him getting work in Australia and as he had a successful business in Fiji he could not leave Fiji.

18. The Tribunal explained to the review applicant the reason why the Department had refused the visa applicant the Resident Return visa. He was invited to provide information as to any substantial ties the visa applicant had with Australia. He said that the visa applicant would like to do business in Australia but his divorce delayed him being able to do so. He said that apart from himself he was not sure of any personal ties the visa applicant has with Australia. He said that he had assets in Fiji and would be able to invest in Australia but could not stay long in Australia because of his business in Fiji. He said that the visa applicant had always enjoyed visiting Australia.

19. The visa applicant gave evidence in support of the application. He said that his business was successful and that his situation in Fiji did not allow him to live in Australia. He said that he bought electrical equipment from Australia which was his business ties with Australia. He said that he currently lives in Fiji with his son, Prince. He said that Prince’s mother left him in 2012 and he has not had any contact with her since then. He said that he divorced his first wife in 2011 and there was a property settlement at that time whereby he had to pay her some money.

20. The visa applicant said that he did not have any continuing contact with his two eldest sons who live in Australia. He said that he last had contact with them in 2011. He said that they are not talking to him.

21. The visa applicant said that after being granted the Skilled Australian Linked visa in 1999 he only stayed in Australia for a short time because he had to go back to his business in Fiji. He said that his wife and children continued to live in Australia. He and his wife were divorced and had a property settlement in 2011.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in this case is whether the applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.

24. 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.

25. 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?

26. 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.

27. 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?

28. Since the visa applicant was first granted the Subclass 105 Skilled Australian Linked visa he has spent very little time in Australia. The business he has in Fiji, which he started many years before he was granted the visa, has continued to be operated by him. It appears to be a successful business. As a result of his successful business in Fiji, he has been able to purchase property in Fiji since being granted the Skilled Australian Linked visa. He has not purchased any property in Australia although he claims he has considered this.

29. His wife (at the time) and his two eldest sons have remained living primarily in Australia since 1999. He divorced his wife in 2011 and finalised a property settlement with her at that time. His two sons have not had any contact with him since 2011 and his relationship with them seems to have completely broken down.

30. The Tribunal is not satisfied that the visa applicant has any continuing relationship with his first wife or the children from his first marriage and that any claimed relationship with them is not a substantial personal tie with Australia which is of benefit to Australia.

31. The applicant’s child, Prince, was granted a Child visa sponsored by the visa applicant. Prince now has the right to reside permanently in Australia. That visa expires in 2023. The only time Prince has been in Australia is when he travelled with his father to Australia, arriving on 23 December 2018 and departing again on 6 January 2019. Prince continues to reside with his father in Fiji and does not appear to have any other connection with Australia. The evidence of the visa applicant was that Prince’s mother left them in 2012 and they have not had any contact with her since then. They are not aware of her whereabouts.

32. As Prince is living in Fiji with his father and as Prince has had spent very little time in Australia, the Tribunal is not satisfied that the fact that Prince has the right to reside permanently in Australia means the applicant has a substantial personal tie with Australia which are of benefit to Australia. Prince is living with his father in Fiji and is a Fijian citizen. There is little information which would indicate Prince has any connections with anybody in Australia or that he will be living with anyone else apart from his father. There is nothing to indicate that Prince could not continue to live with his father and be properly cared for by his father in Fiji.

33. The only other relative of the visa applicant who lives in Australia is the review applicant, his brother. The review applicant and his family are independent of the visa applicant. Although they maintain contact with each other and it was his brother who invited the visa applicant to “visit” him in Australia, the Tribunal is not satisfied that any relationship the visa applicant has with the review applicant is a substantial personal tie which is of benefit to Australia.

34. The visa applicant has a switchboard business in Fiji. He stated that he has never had any business operations in Australia or any employment in Australia. He claimed that his business in Fiji has at times ordered parts from companies based in Australia. The Tribunal is not satisfied that the fact that the business the visa applicant operates in Fiji occasionally orders parts from Australia indicates he has any substantial business or employment ties with Australia.

35. Although the applicant has claimed that it is his intention to reside in Australia there is no credible information which would support this. After being granted the Skilled Australian Linked visa in 1999 he only spent eight days in Australia before returning to Fiji. Since then, he has only visited Australia on three occasions for periods of less than two weeks. He has been operating his business in Fiji throughout that period. There is nothing to indicate that the applicant has any business, cultural or employment ties with Australia. The applicant’s relationship with his former wife has ended and he appears to be estranged from any relationship with his two sons from that marriage who live in Australia. His relationship with his brother is present, however, the Tribunal is not satisfied that this could be considered a substantial time.

36. Accordingly, the Tribunal is not 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.

37. Given the findings above, the applicant does not meet cl.155.212(3).

38. For the reasons above, the Tribunal finds the visa applicant does not meet the criteria for the grant of a Subclass 155 visa. No claim has been made that the applicant would meet any alternative criteria or visa subclass.

    DECISION

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

    Hugh Sanderson
    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.