Samuel (Migration)

[2018] AATA 3178

Samuel (Migration) [2018] AATA 3178 (5 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Eunice Helen Samuel

VISA APPLICANT:  Mr Geoffrey Sione

CASE NUMBER:  1710152

DIBP REFERENCE(S):  2017/17462510

MEMBER:Kate Millar

DATE:5 July 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 05 July 2018 at 11:37am

CATCHWORDS
Migration – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – Whether the applicant has substantial personal ties with Australia – Significant family ties in Australia - Whether the applicant has been absent for compelling reasons – No compelling reasons exist – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 155.212, 157.213

CASES
Lorenzo Paduano v MIMIA [2005] FCA 211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Sione is the son of Ms Samuel, and was granted a subclass 801 visa as a member of her household on 5 June 2008.  When in effect, a subclass 801 visa is a permanent visa permitting the holder to travel to and enter Australia for five years form the date of grant.  The five year period in which Mr Sione could enter Australia on the subclass 801 visa ended on 6 June 2013. 

2. Mr Sione left Australia on 12 August 2011, and has not returned to Australia since.  On 6 March 2017 he applied for a Return (Residence) (Class BB) visa to return to Australia.  His application was refused by a delegate of the Minister for Immigration and Border Protection on 11 April 2017 because the delegate was not satisfied there were compelling reasons he was absent from Australia for more than five years before he applied for the visa.

3. Ms Samuel appeared before the Tribunal on 4 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Sione.

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

   LEGISLATION

5. At the time of Mr Sione’s application, Class BB contained two subclasses – Subclass 155 (Five Year Resident Return) and Subclass 157 (Three Month Resident Return). In this case, Mr Sione seeks a Subclass 155 visa. The criteria for a Subclass 155 visa are set out in Part 155 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

6. The criteria for the grant of the visa include those at cl.155.212.  This clause in turn requires the applicant to meet one of four provisions.  The provision that applies in Mr Sione’s case is at cl.155.212(3). 

7. As Mr Sione has been absent from Australia from 12 August 2011, this requires him to:

   ·     Be outside Australia

   ·     Have substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia

   ·     Not to have been absent for a continuous period of 5 years or more immediately before the application is made unless there are compelling reasons for the absence; and

   ·     Hold a permanent visa, or have departed Australia as an Australian permanent resident, or have departed Australia as an Australian citizen who has subsequently lost or renounced Australian citizenship. 

8. Mr Sione was outside Australia when he applied for the visa, and has been outside Australia for more than 5 continuous years immediately before the visa application.  He holds a permanent subclass 801 visa, and departed Australia as an Australian permanent resident. 

9. It follows that what remains to be considered is whether he has substantial business, cultural or personal ties with Australia that are of benefit to Australia, and whether there are compelling reasons for his absence for more than five continuous years immediately before the application was made.

   HISTORY

10. Ms Samuel said she came to Australia in 2004 with her then husband and the children so that her husband could study his Masters.  The marriage broke down in 2005, and her ex-husband returned to Paua New Guinea with their five children.  Ms Samuel remained in Australia and obtained a permanent visa on the basis of her marriage to an Australian citizen.  She said the children returned to her in 2007.

11. In 2011 she returned to Paua New Guinea as her sister said there were jobs available with her then husband and three of the children; Mr Sione, his twin brother Igo and his younger brother Apeo. This did not work out as planned and it was not easy to obtain work so she returned to Australia in 2013.  The three children remained with their biological father in Paua New Guinea, and Ms Samuel said this was because they were attending school and she did not have any accommodation in Australia.

12. Ms Samuel said Mr Sione became ill, which she thought may have been depression, and she returned to Papua New Guinea for approximately one year because he was ill and she had to sell a truck that was purchased when she last was in Papua New Guinea. 

13. Ms Samuel returned to Australia in 2014 and her relationship with her husband broke down.  She said her youngest child Apeo returned to her care in 2015 and Igo returned in 2015 or 2016.  At that time she was not financially sound as she only had casual work so said she was having the children returned one at a time so she could afford the visas and the flights. 

14. Ms Samuel said Geoffrey remained in Papua New Guinea as he wanted to complete his study, but was unable to do so as he needed surgery on his arm, which was broken when he and Ms Samuel attempted to assist at a hold up.   She said he had not returned earlier as she was in financial difficulty.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

15. Mr Sione does not have business, cultural or employment ties with Australia.

16. Mr Sione does have personal ties to Australia.  His mother Ms Samuel lives in Australia and he has four siblings who also live in Australia, including his twin brother.  In a statutory declaration, Mr Sione states it is difficult to be separated from his twin brother as they have a strong bond. 

17. In a statement that accompanied his application, Mr Sione states he overstayed in Paua New Guinea because he did not know there was a requirement not to be absent from Australia for more than 5 years, and only discovered this when he checked his old passport and realised his resident visa expired two years after he arrived in Paua New Guinea. 

18. Ms Samuel provided a statutory declaration stating she always worries about Mr Sione and she has all of the other children except Mr Sione in Australia.  She believes living apart from his twin brother is very difficult. 

19. On being asked about his contact with his mother and his siblings, Mr Sione said he rarely had contact with his brothers and sister.  He said he had spoken to his mother the day before the hearing, and before then had last spoken to her five or six months ago.

20. Mr Sinoe’s evidence about his contact with his mother and his siblings was put to Ms Samuel under s.359AA of the Act. She said that Mr Sione had his mobile phone stolen and as he does not have a mobile phone all communication is through his father.

21. As his mother and four siblings are In Australia, Mr Sione has substantial person ties with Australia.  Given his lack of contact with his siblings and his other it is less clear how these ties are of benefit to Australia  however I have assumed in Mr Sione’s favour this is the case.  

    Are there compelling reasons for his absence?

22. 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.

23. 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].

24. The period under consideration is the five year period before the visa application on 6 March 2017.  Mr Sione has been absent from Australia since 12 August 2011.  At this time he was 16 years old and he is now nearly 23 years of age.  On the visa application form, he answered “no” to the question of whether there he had compelling reasons for his absence from Australia.  He was provide the opportunity by the Department to provide further information on whether there were compelling reasons for his absence from Australia. 

25. Mr Sione provided a statutory declaration to the Department from his father Apeo Fuata Sione stating Mr Sione has stayed in Paua New Guinea since 12 August 2011 because he wanted to spend quality time with his father before he returned to Australia.  In his visa application, Mr Sione said the reason he was absent from Australia was that he wanted to spend quality time with his father and because he did not know he could not be out of Australia for more than five years. 

26. This information was put to Ms Samuel under s.359AA of the Act, as these reasons do not state that Ms Samuel was unable financially to have Mr Sione return to live with her in Australia. Ms Samuel said that she did not know there was a time frame until Mr Sione was refused the visa She said she told Mr Sione if he wanted to have quality time with his father to tell her when he was ready. On being asked why the financial problems were not mentioned din the visa application, Ms Samuels said she is not working in place where there are regular hours. This did not answer the question.

27. Ms Samuel said that at one point Mr Sione was very ill, with what she thought was depression.  Ms Samuel does not have any evidence regarding any illness Mr Sione suffered.  In contrast, Mr Sione told the Tribunal he has not periods when he has been sick or had problems with his health.

28. At hearing Mr Sione reiterated the reasons he stayed in Papua New Guinea was that he forgot to return within five years.  Before the visa expired he was attending TAFE in Port Moresby and didn’t know when to return.   He said he stayed in Paua New Guinea to spend quality time with his father and to go to school.  He was asked why he remained in Paua New Guinea when Igo and Apeo returned to Australia, and he said it was because he wanted to spend time with his dad and go to school. 

29. As Mr Sione has not at any point with in his visa application or in his evidence before the Tribunal mentioned he had to stay in Paua New Guinea because his mother was experiencing financial hardship.  As this was not a consideration for Mr Sione, he was not compelled by his mother’s financial hardship to be absent from Australia for more than five years before the visa application.

30. Mr Sione said first that he had forgotten he needed to return.  I do not consider he would have felt compelling to remain in Papua New Guinea because he forgot to return to Australia.

31. Mr Sione also said he remained in Paua New Guinea to study, however Mrs Samuel said he was unable to continue to study due to surgery on his arm.  Mr Sione said in summary he “pretty much wanted to spend time with his dad”, and I do not accept he felt compelled to remain to complete his education, particularly after he left his study. 

32. It is the visa applicant who must experience the compelling or forceful reasons for the absence.  It is understandable that a young person would want to spend time with his father, however I am not satisfied this reason remained compelling to Mr Sione for the entire five year period up to the date of the visa application.   

33. As I am not satisfied there were compelling reasons Mr Sione was absent from Australia for a continuous period of five years or more immediately before the application is made, he does not meet cl.155.212 and the decision under review is affirmed. 

34. Mr Sione does not meet the alternate requirements for a subclass 157 visa in cl.157.213 for the same reasons. 

    DECISION

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

    Kate Millar
    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.