Sankaran (Migration)

[2020] AATA 5215

Sankaran (Migration) [2020] AATA 5215 (24 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karthikeyan Sankaran

CASE NUMBER:  1813113

HOME AFFAIRS REFERENCE(S):          BCC2018/1583564

MEMBER:Kira Raif

DATE:24 September 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Return (Residence) (Class BB) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 155 (Five Year Resident Return) visa:

·cl.155.212 of Schedule 2 to the Regulations

Statement made on 24 September 2020 at 10:46am

CATCHWORDS

MIGRATION – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – substantial business, cultural, employment or personal ties with Australia – residence requirements – professional accreditation and membership – property ownership – philanthropic donations – progress towards admission as a legal practitioner – imminent intention to return – decision under review remitted           

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 17 April 2018 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 4 April 2018. The delegate refused to grant the visa on the basis that the applicant did not meet cl.155.212 because the delegate was not satisfied the applicant had substantial business, cultural, employment or personal ties with Australia. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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).

5. 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.

   Alternative requirements of cl. 155.212

6. The visa applicant’s immigration history is set out in the primary decision record. It indicates that the applicant was granted an Independent (Class BF Subclass 126) visa on 24 July 1991. The primary decision record indicates that the applicant had been present in Australia as a holder of a permanent visa for 408 days in the five years before making the present application.

7. The Tribunal is not satisfied the applicant was lawfully present in Australia for a period of, or periods that total, not less than 2 years in the period of 5 years immediately before the application for the visa. The applicant does not meet cl. 155.212(2).

8. The primary decision record indicates that the application was made in Australia. As the applicant was in Australia at the time of application, the applicant cannot meet cl.155.212(3). There is no evidence that the applicant is a member of the family unit of a person who has been granted the Subclass 155 visa or who meets the requirements of cl. 155.212(2), (3) or (3A). The applicant does not meet cl. 155.212(4). The applicant is seeking to meet cl.155.212(3A).

9. Subclause 155.212(3A) 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.

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

10. The applicant provided with his application a number of documents to establish his ties with Australia. These include evidence of the applicant’s professional accreditation in Australia as a mediator and professional membership in the Institute of Insurance and Finance, evidence of his study in Australia and of his communication with the Legal Access Board outlining further study needed to be completed to gain admission as a legal practitioner in Australia. The applicant provided evidence of property ownership, payment of insurance and various bills associated with the property and a mortgage statement, evidence of having made several philanthropic donations, evidence of having done some mentoring of university students, statements of support and a number of other documents. The applicant provided additional evidence to the Tribunal, which includes evidence of his study in Australia towards gaining admission as a legal practitioner, evidence of his travel and other materials.

11. The delegate found that the applicant’s ties were not substantial, nor of benefit to Australia. The Tribunal does not agree with that assessment. The Tribunal acknowledges that the applicant completed tertiary study (Masters of Law) in Australia and has since undertaken further study to enable him to be admitted, and practise as a lawyer in Australia. The Tribunal accepts that the applicant has established professional ties with Australia through his membership in, and participation with, professional bodies and activities. The Tribunal accepts the applicant has financial ties through the ownership of property and payment of some taxes, as well as philanthropic donations. The applicant has personal ties through his contribution to the educational activities as well as family ties, evidenced through the statement of support provided by his niece, who is an Australian citizen. The applicant has made a number of trips to Australia, has acquired an ABN and is a member of the Mercedes Benz club, all of which suggests the applicant’s intention to maintain links to Australia. In the Tribunal’s view, the steps the applicant is taking to be able to practise as a lawyer in Australia, and the fact that he has established and maintained professional associations in Australia, as well as his property, all suggest that the applicant intends to establish residence in Australia in the future.

12. The delegate found that the applicant did not have an imminent intention to reside in Australia. The Tribunal does not consider this to be the legal requirement. There is nothing in cl. 155.212(3A) that links personal ties with an imminent intention to live in Australia and the Tribunal does not consider the two concepts to be complementary or interchangeable. While the Tribunal has formed the view that the applicant does have an intention to establish residence in Australia some time in the future, the Tribunal does not consider there is a need to establish such an intention, to meet the close ties requirements.

13. The Tribunal has formed the view that the combination of the factors set out above does establish that the applicant has substantial personal and cultural ties with Australia which are of benefit to Australia. The Tribunal is mindful that the applicant has been granted a number of Resident Return visas. Two of these were granted since the present application was made, one in September 2018 and the most recent in October 2019. That visa remains valid until 2024. It is evident from the grant of these visas that the applicant’s ties have been assessed as being substantial and of benefit to Australia for the purpose of those two applications.

14. Overall, the Tribunal is satisfied that the applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia. The applicant meets cl. 155.212(3A)(a).

15. The applicant has made several trips to Australia. The Tribunal finds that the applicant has not been absent from Australia for a continuous period of 5 years or more since the grant of his most recent permanent visa. The applicant meets cl. 155.212(3A)(b) and cl. 155.212.

    Conclusion

16. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 155 visa.

    DECISION

17. The Tribunal remits the application for a Return (Residence) (Class BB) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 155 (Five Year Resident Return) visa:

    ·cl.155.212 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member