Saeed (Migration)

[2024] AATA 683

Saeed (Migration) [2024] AATA 683 (23 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Sadra Saeed

VISA APPLICANT:  Mr Omer Saeed Rana

REPRESENTATIVE:  Mrs Ayshmin Imran (MARN: 0955824)

CASE NUMBER:  2017062

HOME AFFAIRS REFERENCE(S):          BCC2020/1713404

MEMBER:Deputy President Justin Owen

DATE:23 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 23 January 2024 at 9:57am

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – alternative requirements – substantial ties criterion – personal ties to Australia – strong relationship with sister, nephews and nieces – no dependency – ‘to the benefit of Australia’ – business and employment ties – design engineer – potential future business venture – compelling and compassionate reasons for departure from Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 18 September 2020 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 10 June 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 18 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Omer Saeed Rana, who is the applicant and the review applicant's brother.

5. The review applicant was represented in relation to the review.

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 evidence as outlined in the delegate’s decision record, a copy of which was provided by the review applicant to the Tribunal, is that the applicant held a permanent visa – a Skilled (class VE) (subclass 175) Independent visa at the time he last departed Australia on 12 January 2016. 

11. The Tribunal noted from the decision record that the applicant had been present in Australia as the holder of a permanent visa for only 17 days in the five years preceding the lodgement of his visa application on 10 June 2020.  This was not disputed by the review applicant or the applicant. 

12. The evidence before the Tribunal therefore 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 his visa application on 10 June 2020.  The applicant and review applicant did not dispute this.    

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

16. The applicant has claimed to have substantial ties to Australia that are of benefit to Australia.  The applicant and review applicant discussed these purported ties at the Tribunal’s hearing.

17. In relation to personal ties to Australia, the applicant and review applicant discussed the applicant’s ties with his sister (the review applicant) who is a consultant General Practitioner that migrated to Australia in 2015.  The review applicant also has five children aged between seven and 21 years of age.  The review applicant explained that she is now a single mother, and the applicant’s presence in the lives of her children is a strong positive influence. 

18. The Tribunal accepts that the applicant and review applicant have a strong family relationship with each other.  Both are undoubtedly high achievers, and the Tribunal accepts the applicant is a positive influence on the lives of his nephews and nieces.  The Tribunal accepts that the role is more important given the review applicant’s separation from her children’s father. 

19. The Tribunal notes however that the review applicant, an Australian citizen, and her children are not dependent on the applicant.  The review applicant has her own medical career.  The applicant discussed his own successful career history.  He remains in employment today.  There is no claim or suggestion that he is dependent on his sister.  Given there is no dependency by the applicant or the review applicant upon each other, the Tribunal does not accept that these ties are personal ties to the benefit of Australia.  Similarly, whilst the Tribunal accepts the applicant enjoys a good relationship with his nephews and nieces, these have been built and maintained principally whilst the applicant has been offshore.  He was in Australia for just 17 days between the grant of his Skilled (class VE) (subclass 175) visa on 15 July 2015 and his application for the subclass 155 visa on 10 June 2020.  There is no reason before the Tribunal why this beneficial relationship cannot continue whilst the applicant remains offshore.  The Tribunal does not accept the applicant has substantial personal ties with Australia through his sister the review applicant and her children that are of benefit to Australia. 

20. The Tribunal notes the applicant claims a further Australian citizen sister who is a pharmacist.  The Tribunal again notes the paucity of days the applicant has spent in Australia between the grant of a permanent visa in 2015 and his lodgement of the application for the subclass 155 visa in June 2020.  The Tribunal does not accept that any relationship the applicant has with his other sister, given he has spent so little time actually in Australia, represents a substantial personal tie that is to the benefit of Australia.

21. The applicant and review applicant have submitted that the applicant has substantial business and/or employment ties with Australia that are of benefit to Australia.

22. The applicant discussed his substantial academic record that includes a Masters degree and a Master of Business Administration degree.  He wishes to complete a doctorate that looks at sustainability and the reduction of the carbon footprint of industry.  He states his skillset, and experience with the gas industry, is a very unique skillset that will be to the benefit of Australia. 

23. The review applicant stated that KBR had offered the applicant a role in Australia verbally, a role similar to the one he currently holds.   

24. The Tribunal asked the applicant what his specific business and employment ties are, which are of benefit to Australia.  He stated his employment and responsibilities with the international firm KBR were to Australia’s benefit.  KBR (formerly Kellogg Brown & Root) is a US based company operating in fields of science, technology and engineering.  The applicant discussed hid career with KBR that involved working in Saudi Arabia for the biggest oil producer in the world.  His exposure and experience were of great value to Australia.  He discussed his career as a design engineer, and stated he has skills that would allow him to train other young engineers in Australia.  The applicant claims he has been earmarked for projects, including potentially in Australia, and has international certifications.  The applicant states he has unique experience on very large projects through the Middle East.  He stated KBR would have future key infrastructure projects in the oil and gas areas in Australia. 

25. The Tribunal asked the applicant why KBR would not sponsor him if his skills were in such demand in Australia by the business.  The applicant stated that if the Tribunal did not decide in his favour the firm would ultimately sponsor a legally-binding job offer.  He stated that at the moment the firm could not give him a legally-biding offer whilst his matter was at the Tribunal.

26. The applicant also discussed a potential import/export business he would potentially open with his sister. 

27. The Tribunal discussed the fact that in 2015 when granted a permanent visa – a Skilled (class VE) (subclass 175) visa on the basis of his mechanical engineering qualifications – the applicant ended up only spending a very short period in Australia.  The applicant explained that he had to return home at that time, and the job market was poor.  He stated he did not wish to be a burden on other people during this period.  The review applicant stated that during this period the applicant’s wife had two miscarriages whilst their mother was quite unwell. She stated the COVID-19 pandemic also delayed any return.  She stated the applicant also had to fulfil the obligations of his employer, KBR, who wanted the applicant to complete projects in areas such as Saudi Arabia before going to Australia.    

28. The Tribunal invited the applicant and review applicant to submit any further documentation post-hearing to it pertaining to the applicant’s claims he has substantial business and employment ties with Australia that are to the benefit of Australia, and in particular any evidence concerning his claims concerning his employer KBR by 6 January 2024. 

29. The parties subsequently submitted correspondence dated 5 January 2017 from KBR stating the applicant had worked with them between July 2013 and August 2016 as an Associate Project Manager – Engineering on a project; a certificate from KBR dated 2015 recognising the applicant as ‘Employee of the Quarter’; and correspondence from June 2019 from the Branch of China Petroleum Pipeline Engineering Co Ltd that states the applicant worked as a manager between September 2016 and June 2019.  Also submitted to the Tribunal was KBR correspondence from May 2023 confirming the applicant had been working for them as a Senior Project Manager – Engineering since March 2019 in Saudi Arabia.  Further correspondence from KBR from April 2020 confirming the applicant’s outstanding performance in his role was provided as was a letter dated October 2020 from Mr M. Arif Patel, Program Director at KBR recommending the applicant to Edinburgh Business School at Heriot-Watt University for their DBA program. 

30. The Tribunal has considered the evidence the applicant and the review applicant have provided concerning the applicant’s employment, his role at KBR, his career achievements to date and his extensive curriculum vitae (CV).  The applicant is obviously an intelligent, diligent and high-achieving employee who is valued by his employer.  The Tribunal accepts these submissions and accepts that the applicant has been a highly valued employee at KBR over a number of years and remains so today.   

31. The question before the Tribunal remains: does the applicant have substantial business or employment ties that are of benefit to Australia. 

32. The Tribunal on the evidence before it does not consider the applicant’s ties represent substantial business or employment ties that are of benefit to Australia.  The applicant does not have any letter of offer from KBR that confirms he has been offered a role in Australia either in the past, at the time of application, or at the time of decision.  There is no evidence (or claim) that the applicant is employed or has received any employment offer at the time of application, or now at the time of decision, from any other Australian companies or Australian-domiciled companies. 

33. There is no evidence furthermore that the skills the applicant brings to any future role would not be able to be met from the existing Australian labour force even if KBR were to pursue future business activities in Australia as discussed by the applicant. 

34. The Tribunal notes the applicant’s claims that his skills and experience would be able to be passed on to the Australian workforce.  Whilst his experience, and ability to train, may be of some value, the Tribunal does not consider this to be a substantial business or employment tie to the benefit of Australia.

35. The applicant has provided many pages of project manager jobs that were advertised in September 2023 presumably as evidence his skills are in demand.  The Tribunal does not accept job advertisements – and the applicant’s CV – are evidence of substantial business or employment ties that are to the benefit of Australia. 

36. The Tribunal does not accept, having considered all the evidence before it, that the potential of KBR creating a future role for the applicant in Australia (an individual the Tribunal accepts is a highly valued long-term employee) whilst theoretically weighing in the applicant’s favour (as the Tribunal stated at the hearing), is ultimately a substantial business or employment tie to Australia that is to the benefit of Australia.  The applicant has spent very few days in Australia since he was granted a Skilled visa some nine years ago so there can be no plausible claim that Australia has benefited from his skills to date.  The applicant essentially submits his future potential through a role with his existing employer in Australia represents a substantial business or employment tie to Australia.  The Tribunal does not accept this is the case.

37. The Tribunal would furthermore note that cl 155.212(3) is a time of application criteria.  The applicant at the time of decision had spent just 17 days in Australia since the grant of his Skilled visa in 2015.  He had no role or employment offer at the time of application that represented a substantial business or employment tie with Australia that was to the benefit of Australia. 

38. The Tribunal notes that on 22 January 2024 the applicant asked for a further extension to obtain a letter from KBR Australia.  The Tribunal declined to provide an extension.  The Tribunal notes that it is the time of application criteria which the applicant does not meet.  Even if a letter from KBR Australia was received that stated the applicant was highly-valued and considered for a future role (which is obviously in his favour), this ultimately would not mitigate his failure to meet the specific time of application criteria. Furthermore, the Tribunal does not accept, based upon the circumstances and evidence in this review, the potential creation of a future role by KBR Australia, whilst weighing in the applicant’s favour, represents a substantial business or employment tie with Australia that was to the benefit of Australia. 

39. The Tribunal has considered the evidence of the applicant and the review applicant that they would look at operating a small business together in Australia should the applicant be granted his visa.  Whilst the parties are undoubtedly very capable and industrious individuals, the Tribunal does not consider any potential future business venture can be classified as a substantial business tie that was to the benefit of Australia.

40. The Tribunal notes it has already made conclusions concerning the applicant’s personal ties to Australia that are of benefit to Australia.  There are no claims that the applicant has specific cultural ties to Australia that are of benefit to Australia that have been submitted by the applicant.       

41. 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.

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

    Does the applicant meet the family member criterion?

43. 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.

44. The review applicant and applicant submitted the visa grant notice for Miss Eimaan Omer Rana, the applicant’s daughter, who on 1 May 2019 was granted a Child (Class AH) (subclass 101) visa that is in effect until 1 May 2024. 

45. The Tribunal explained that a Child (Class AH) (subclass 101) visa was not relevant to the family member criterion.

46. The applicant and review applicant made no claim, and there is no evidence, that the applicant is a member of the family unit of a person that had been granted a Subclass 155 visa, and that visa is still in effect.  There is also no claim or evidence that the applicant is 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.

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

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

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

50. 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.

51. The applicant was present in Australia as the holder of a permanent visa for not less than one day but less than two years in the period of five years immediately before the application. 

1. The Tribunal has considered subsequently if the applicant has either compelling and compassionate reasons for departing Australia; and whether he had compelling and compassionate reasons for his last departure from Australia. 

2. It was submitted to the Tribunal by the review applicant that the applicant had to fulfil his obligations to his employer KBR offshore before he came to Australia to migrate.  The Tribunal does not consider this to be a compelling and compassionate reason for the grant of the visa.  The applicant applied for a Skilled (class VE) (subclass 175) visa – and was granted as such in 2015, including permanent residency – on the basis that his skills would be brought to Australia, for the benefit of Australia.  The applicant instead has spent those years working offshore.  The Tribunal does not consider any other purported ‘obligation’ he has to an employer to remain offshore as a compelling and compassionate reason for the applicant either departing Australia, or his last departure from Australia.        

3. The review applicant submitted that there were personal issues as well that represented compelling and compassionate reasons for the applicant’s departure from and absence from Australia.  These included his wife purportedly having two miscarriages and his mother being quite unwell.  There is no medical evidence before the Tribunal to confirm these medical claims, though for the purposes of this review the Tribunal accepts them.  The Tribunal does not however consider them to be compelling and compassionate reasons for the grant of the visa. The Tribunal considers the applicant would have been able to provide his wife with the same or similar emotional support should they have been in Australia as was intended from the grant of his Skilled permanent visa. In relation to his mother, the Tribunal notes that the applicant would appear to have spent these years as a permanent resident of Saudi Arabia rather than in Pakistan with his mother.  The Tribunal considers the applicant could have provided emotional support to his mother remotely or travelled to see her (COVID-19 border closures notwithstanding) from time to time.  The Tribunal does not consider the circumstances of the applicant’s wife and mother are compelling and compassionate reasons for the applicant either departing Australia, or are compelling and compassionate reasons for departing Australia.

4. The review applicant has raised the restrictions imposed by the COVID-19 pandemic and the global border shutdowns that accompanied the pandemic as representing compelling and compassionate reasons for his departure from, and failure to return to, Australia.  The applicant submits that the pandemic delayed his planned departure from Saudi Arabia to Australia in 2020. The Tribunal accepts that the pandemic caused significant delays across the globe for individuals wishing to travel for work-related and family reasons, including that of migration.  The Tribunal does not however consider the pandemic – and its accompanying restrictions – represents compelling and compassionate reasons for the grant of the visa.  The Tribunal notes that the applicant had some years to migrate to Australia as envisaged by the grant of his Skilled (class VE) (subclass 175) visa in July 2015, well before the closure of international borders in 2020.  The Tribunal does not consider the global pandemic and associated border closures from 2020 – closures that impacted many millions of people – are compelling and compassionate reasons for the applicant either departing Australia, or for his last departure from Australia.            

5. The Tribunal is not satisfied the applicant has compelling reasons for departing Australia, or if outside Australia, he had compelling and compassionate reasons for his last departure from Australia.  Accordingly, the Tribunal finds the applicant does not meet the requirements in cl 157.212(2).

6. 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).

   DECISION

7. 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.