Ranbir (Migration)

[2024] AATA 72

Ranbir (Migration) [2024] AATA 72 (12 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Manjit Kaur Ranbir

VISA APPLICANT:  Mrs Ranjit Kaur Kartar Singh

REPRESENTATIVE:  Mr Dharmindher Singh (MARN: 0849365)

CASE NUMBER:  2107057

HOME AFFAIRS REFERENCE(S):          BCC2020/2820373

MEMBER:Deputy President Justin Owen

DATE:12 January 2024

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 12 January 2024 at 10:43am

CATCHWORDS

MIGRATION – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – applicant was outside Australia in the preceding five years – no permanent visa – member of the family unit – significant investment in Australia – supporting family members in Australia and overseas – referral for Ministerial Intervention – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 155.212, 157.212

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 19 March 2021 to refuse to grant the visa applicant (the applicant) a Return (Residence) (Class BB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 December 2020. 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 (Cth) (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 either cl 155.212 or cl 157.212.  

4. The review applicant appeared before the Tribunal via videoconference on 6 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Ranjit Kaur Kartar Singh, who is the applicant and the review applicant's sister.

5. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Was the applicant lawfully present in Australia?

9. Subclause 155.212(2) is met if the applicant was lawfully present in Australia for a total of not less than two years in the period of five years immediately before the visa application and, during that time:

   ·was an Australian citizen or the holder of a permanent visa or permanent entry permit; and

   ·was not the holder of certain specified visas.

10. The Tribunal noted from the decision record the review applicant provided it that the applicant had not been present in Australia as the holder of a permanent visa in the five years preceding the lodgement of her visa application on 15 December 2020. 

11. The applicant and the review applicant confirmed that the applicant had not been present in Australia at all as the holder of a permanent visa in the five years preceding the lodgement of her visa application on 15 December 2020.  The applicant confirmed that she had visited Australia in December 2018 for a period of around four days, but as the holder of a Tourist visa, being a non-permanent visa. 

12. The evidence before the Tribunal is that the applicant had not been in Australia as the holder of a permanent visa for at least two years of the five years preceding the lodgement of her visa application on 15 December 2020.  The applicant and review applicant confirmed the applicant’s last permanent visa had in fact been a Resident Return Permanent (subclass 157) visa that expired on 18 March 2009.   

13. Accordingly, the applicant does not meet cl 155.212(2).

    Does the applicant meet the substantial ties criterion?

14. 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.

15. 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 meet the prescribed residency requirements?

16. The Tribunal has firstly addressed the prescribed residency requirements in considering whether the applicant meets the requirements of cl 155.212(3). 

17. In addition to having substantial ties to Australia, cl 155.212(3) requires that the applicant either:

    ·holds a permanent visa or last left Australia as a permanent resident or citizen (but is no longer a citizen), and has not been continuously absent from Australia for five years or more immediately before the visa application (unless there are compelling reasons for the absence); or

    ·was an Australian citizen or permanent resident less than 10 years before the application, and has not been absent from Australia for periods totalling more than five years since last departing Australia as a citizen or permanent resident (unless there are compelling reasons for the absence).

18. The applicant and the review applicant at the Tribunal’s hearing confirmed that, as outlined in the delegate’s decision the review applicant supplied the Tribunal, the applicant had last departed Australia in 2018 as the holder of an Electronic Travel Authority Temporary Visa (subclass 601).  She lodged the Resident Return (subclass 155) visa application which is the subject of this review over two years later. 

19. The applicant confirmed in her oral testimony that the last permanent visa she held in Australia was a Resident Return Permanent (subclass 157) visa that she was granted on 18 December 2008 and expired on 18 March 2009.  This is also reflected in the written submissions of the review applicant to the Tribunal.

20. Given the applicant did not hold a permanent visa at the time of application for the visa currently under review on 15 December 2020, and she was not an Australian permanent resident or citizen when she last departed Australia, prior to lodging her application, the applicant does not meet the requirements of cl 155.212(3)(a).

21. The Tribunal notes from both the applicant’s testimony and the delegate’s decision record provided to the Tribunal by the review applicant that the applicant’s last permanent visa expired on 18 March 2009.  The Tribunal notes cl 155.212(3)(b) requires that at the time of application, the applicant is required to have been an Australian permanent resident or Australian citizen within the period of 10 years prior to lodging her visa application.  The applicant confirmed her last permanent visa expired on 18 March 2009 and acknowledged this was more than 10 years prior to lodging her current application.  The Tribunal finds that as the applicant last held a permanent resident visa on 18 March 2009, more than 10 years before her application on 15 December 2020, she does not meet cl 155.212(3)(b).

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

23. Given the Tribunal has found the applicant does not meet the prescribed residency requirements, the Tribunal is not required to make findings as to whether the applicant has substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia and whether there are compelling reasons for the applicant’s absence from Australia. 

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

    Does the applicant meet the family member criterion?

25. Subclause 155.212(4) is met if at the time of application the applicant is a member of the family unit of a person who:

    ·has been granted a Subclass 155 visa and that visa is still in effect; or

    ·meets the requirements of cls 155.212(2), (3) or (3A) (relating to presence in Australia, substantial ties, and absence from Australia) and has lodged a separate application for a Class BB visa. For visa applications made before 1 July 2012, the person may lodge a separate or combined application.

26. The applicant and review applicant confirmed that the applicant is not a member of the family unit of a person that had been granted a Subclass 155 visa, and that visa is still in effect.  They also confirmed that the applicant is not the member of the family unit of a person who meets the requirements of cls 155.212(2), (3) or (3A) and has lodged a separate application for a Class BB visa.

27. Accordingly, the applicant does not meet cl 155.212(4).

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

29. The Tribunal has considered whether the applicant meets the criteria for a Subclass 157 visa including cl 157.212.

30. Clause 157.212(2) requires that the applicant:

    (a)was lawfully present in Australia for a period of, or periods that total, not less than 1 day but less than 2 years in the period of 5 years immediately before the application for the visa and, during that time, the applicant:

    (i)was:

    (A)  the holder of a permanent visa or a permanent entry permit; or

    (B)  an Australian citizen; and

    (ii)was not the holder of:

    (A)  a temporary visa (other than a subclass 773 Border visa, subclass 956 Electronic Travel Authority (Business Entrant — Long Validity) visa, subclass 976 Electronic Travel Authority (Visitor) visa or subclass 977 Electronic Travel Authority (Business Entrant — Short Validity) visa held concurrently with the permanent visa or the permanent entry permit); or

    (B)  a bridging visa; and

    (b)either:

    (i)has compelling and compassionate reasons for departing Australia; or

    (ii)if outside Australia, had compelling and compassionate reasons for his or her last departure from Australia.

31. The applicant confirmed, as outlined in the decision record the review applicant provided the Tribunal, that she was not the holder of a permanent visa at any time in the five-year period preceding her application for the visa on 15 December 2020.

32. The applicant furthermore confirmed she was outside of Australia at the time of application on 15 December 2020. 

33. As the applicant was outside of Australia at the time of application, and she was not, in the relevant five years before lodgement of his visa application, the holder of a permanent visa, the Tribunal finds she does not meet the requirements in cl 157.212(2).

34. The applicant also does not meet cl 157.212(3).  The applicant and review applicant made no claim and presented no evidence that the applicant was the member of a family unit of a person who has been granted a subclass 157 visa that was still in effect.  There is furthermore no evidence or claim that the applicant is a member of the family unit of a person that meets the requirements of cl 157.212(2) and has lodged a separate application for a Return (Residence) (Class BB) visa. The applicant subsequently does not meet cl 157.212(3).

35. The applicant, together with her representative, conceded that she did not in the circumstances meet the criteria for the grant of the subclass 155 and subclass 157 visas.

36. At the Tribunal’s hearing the issue of Ministerial Intervention was discussed.  The Tribunal has considered all the evidence before it and considers there may be circumstances that justify Ministerial Intervention and satisfy the public interest requirement. 

37. The Tribunal noted at the hearing the circumstances pertaining to the applicant’s visa application.  It has been submitted that circumstances have conspired to regrettably generate an outcome where more than 10 years had expired since the applicant was last an Australian permanent resident (on the basis that her last permanent visa expired on 18 March 2009).  The applicant ultimately lodged her current application about 11 and a half years after she was last an Australian permanent resident.   

38. The applicant stated that she had been under a misapprehension for many years that her chances of returning to Australia and obtaining a permanent visa had been exhausted after the expiration of her subclass 157 visa on 18 March 2009.  

39. The applicant submits that in 2017 she and her husband had paid $10,000 to a migration agent to commence an application for a Business Talent (Permanent) (subclass 132) visa on the basis of her husband, Dr Prasit Singhaviranon who was senior cardiologist at Vajira Hospital Bangkok, a University Hospital in Thailand.  Dr Singhaviranon was both teaching medicine and running medical businesses.  Further payments of thousands of dollars were made to the agent.  The Tribunal notes the evidence of these payments that were submitted post-hearing.  It would appear no lodgement of the application was in fact ever made by the agent. 

40. It is obviously impossible for the Tribunal to ascertain whether the applicant would have been successful with her application if lodged prior to her exceeding the 10-year period since her most recent permanent visa expired on 18 March 2009.  The Tribunal would nevertheless note that the applicant’s husband (together with the applicant) have been significant investors in Perth over a number of years in the property and building industries.  The Tribunal accepts the presence of the applicant has assisted Dr Singhaviranon in managing these investments in Perth housing stock effectively.  The Tribunal accepts they have made a positive contribution through their investments in land and property.  The Tribunal also is prepared to accept on the evidence before it that the applicant is the victim of bad advice in relation to the lodgement of a further permanent visa application.  

41. The Tribunal considers there is evidence before it to suggest that there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

42. The applicant and the review applicant each discussed the applicant’s relationship with her late brother’s family.  The applicant stated that she had promised her terminally-ill brother that she would take care of and support his three daughters, her three nieces.  She states that she continues to do so today.  The Tribunal accepts the applicant plays an important ongoing role in supporting her nieces and her late brother’s family. 

43. The evidence before the Tribunal is that the applicant’s family is overwhelmingly living in Perth and has done so for a considerable time. The applicant herself has a long history in Perth having first arrived in 1987 and working at the Parmelia Hilton whilst successfully completing a Bachelor of Laws (Honours) at university.  She was to be an Australian permanent resident for over 22 years between 1987 and 2009 and held roles in companies such as Boral. The applicant departed Perth when her father and mother fell ill and deceased within 15 months of each other, a situation that led to her eventually losing her permanent residency due to the fact she was offshore and receiving sub-standard migration advice. 

44. The applicant’s sister’s family (the applicant’s sister being the review applicant), with four adult children (born in Adelaide and Perth) and their families are all Australian citizens and long-term residents.  The applicant submits that her sister is now 72 years of age, she has been diagnosed with cryptogenic organised pneumonia and lost much of her lung capacity making travel difficult since the COVID-19 pandemic.  The applicant submits that her sister is like a mother figure to her and provides her with ongoing support. The Tribunal accepts the applicant has a very close relationship to her sister and this will be impacted adversely by the refusal of her application.    

45. The Tribunal notes furthermore that the applicant’s wider family are residing in Brisbane and Melbourne as well as Perth.  The family collectively is one of achievement with a myriad of doctors, surgeons and dentists. 

46. It is submitted that there are strong compassionate circumstances that support Ministerial Intervention.  The Tribunal accepts that serious harm and continuing hardship would be caused to the Australian family unit of the applicant if she were unsuccessful in her application.   

47. The applicant has requested the Tribunal support her request for Ministerial Intervention pursuant to s 351 of the Act.  The applicant asserts that there are compelling and compassionate circumstances which both justify Ministerial Intervention and presumably satisfy the public interest requirement.

48. The Tribunal has carefully considered the applicant’s circumstances, and the claims she has made in relation to her personal circumstances as well as the background to her lodging her visa application. 

49. The Tribunal considers on the evidence there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

50. Having regard to the applicant’s circumstances, and having considered the Ministerial guidelines relating to the Minister’s discretionary power under s 351, set out in the Department’s Procedures Advice Manual (PAM3), the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.   

    DECISION

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

    Justin Owen
    Deputy President

    
    

    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.