Quigley (Migration)

[2018] AATA 3297

Quigley (Migration) [2018] AATA 3297 (23 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dermot Michael Quigley
Ms Shauna Ann Starrs
Mr Diarmuid Quigley
Miss Caoirse Quigley

CASE NUMBER:  1614211

DIBP REFERENCE(S):  BCC2016/1276787

MEMBER:Kira Raif

DATE:23 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Residence) (Class VB) visas.

Statement made on 23 August 2018 at 12:17pm

CATCHWORDS

Migration – Skilled (Residence) (Class VB) – Subclass 887 (Skilled – Regional) – 2 year residence requirement – Out of Australia for over 1 year – Compelling circumstances – Tragic death of family members in home country – Stayed to support family – No discretion to waiver the statutory requirement – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 887.211, 887.212, 887.321

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 Immigration on 22 August 2016 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are nationals of Ireland. The first named applicant (‘the applicant’) was born in June 1976. He made the application for the visa on 24 March 2016. The application includes his partner and two children. The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl.887.212 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant had lived in the specified regional area for at least 2 years as a holder of a prescribed type of visas. The applicants seek review of the delegate’s decision.

3. The applicants appeared before the Tribunal on 23 August 2018 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. Visa Class VB contains Subclass 887, the criteria for which are set out in Part 887 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

5. Clause 887.212 requires that, at the time of visa application, the applicant had lived in a specified regional area for a total of at least 2 years as the holder of 1 or more specified visas. ‘Specified regional area’ is defined by cl.887.111 and varies depending on which visa an applicant has relied on in applying for the Subclass 887 visa. It refers to a part of Australia that at the time that visa was first granted, was specified by the Minister in the relevant written instrument.

   Residence in a regional area

6. There is no evidence, and the parties do not claim, that the secondary applicants meet the primary criteria for visa grant.

7. The applicant provided to the Tribunal a copy of the primary decision. It indicates that the applicants were granted the Class SP Skilled – Regional Sponsored (Provisional) visas on 29 March 2012 and entered Australia on 24 August 2012. There is no evidence that the applicant lived in Australia as a holder of a Bridging visa granted on the basis of an application for a Skilled visa.

8. The primary decision record indicates that since being granted the Skilled visa in August 2012 and before the present application was made in March 2016, the applicant had spent 592 days in Australia. The delegate notes that from August 2012 and before the present application was made, the applicant had spent 719 days offshore.

9. The applicants provided a number of documents to the Tribunal concerning their residence in a regional area. These include the children’s school reports, evidence of the applicant’s own educational qualifications and course completion records, an employment reference for the applicant’s partner referring to her commencing work in November 2015.

10. The applicant provided a written submission to the Tribunal on 16 August 2018. The applicant states that there were compelling and compassionate circumstances that resulted in them being unable to satisfy the residence requirement in cl. 887.212. The applicant states that after arriving and settling in Australia, he received news in July 2013 that his mother had been diagnosed with cancer and the family returned to Ireland. The mother passed away in July 2014. In January 2014 the applicant’s nephew committed suicide and the secondary applicant’s relative was killed in a car accident in May 2014. At the same time the applicant’s close friend died of a heart attack. Due to the passing of so many relatives and friends, the family remained in Ireland to provide support to other family members. They returned to Australia in August 2015 and were granted Subclass 489 visas in October 2015.

11. The applicant states that they were granted the initial Subclass 475 visas in March 2012 and were resident in a regional area as holders of that visa from August 2012 to August 2013, for approximately 12 months. They returned to Ireland for compassionate reasons and extended their stay overseas due to tragic circumstances outside their control. They returned to Australia in August 2015 and immediately applied for the Subclass 489 visas. They continued to reside in a regional area as holders of that visa after it was granted in October 2015 and applied for the subclass 887 visas in March 2016.

12. The applicant concedes that they cannot meet the 2 year residence requirement. Their then agent advised them to lodge the application anyway, because they would meet the requirements at the time of decision, and they assumed that their circumstances would be taken into consideration.

13. The applicant notes that by the time of the delegate’s decision, they have met the 2 year requirement. However, the applicant acknowledges at the same time that the residence requirement applies at the time of the application. As such, the fact that the family may have met the requirement some time after the application was made is unhelpful.

14. In his submission to the Tribunal the applicant outlined his family’s circumstances, including residential arrangements, employment and the children’s study. The applicant states that he always intended to be resident in Australia for the duration of the visa and it was only due to the circumstances beyond their control that the family returned to Ireland. The Tribunal accepts that evidence.

15. In oral evidence to the Tribunal the applicants also outlined the reasons why they could not remain in a regional area for the requisite period of time. The Tribunal accepts that evidence and the evidence contained in the written submissions.

16. The applicant refers to the Departmental policy, stating that it allows for short periods of overseas travel to be counted towards the Australian residence. The applicant submits that overseas travel on compassionate grounds can also be counted towards Australian residence. The Tribunal does not accept that submission. The short periods of overseas travel do not detract from a person’s intention to maintain Australia as their usual place of residence, nor are there steps taken to establish residence elsewhere. That is, short overseas trips to do not establish ‘residence’ outside of Australia. In the present case, the time spent overseas was substantial and, in the Tribunal’s view, would constitute ‘residence’ outside of Australia. During that lengthy period of overseas stay, there is no evidence that the family maintained residence in Australia and the Tribunal is not satisfied there residence in Australia. The Tribunal accepts that there were strong compassionate or compelling reasons for the family to return to Ireland and to remain in Ireland and it is also possible that the family had always intended to return to Australia. However, they did establish residence in another country and such residence was for a lengthy period rather than short periods contemplated by the policy.

17. Overall, the Tribunal accepts that there were compassionate reasons for the family to remain in Ireland. However, the Tribunal is not satisfied that during the period of overseas residence, the family maintained residence in Australia. Their residence in Australia was not for the requisite period of two years. The Tribunal does not consider it has any discretion to waive the statutory requirement. The applicants have not lived in Australia in a regional area for at least 2 years when the application was made. While the Tribunal accepts there may have been good reasons for it, the applicants do not meet one of the requirements for the grant of the visa and the Tribunal must affirm the decision under review. The applicant does not meet cl. 887.212 and the secondary applicants do not meet cl. 887.321.

    Conclusion

18. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 887 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

19. The Tribunal affirms the decision not to grant the applicants Skilled (Residence) (Class VB) visas.

    Kira Raif
    Senior Member