Savic (Migration)

[2019] AATA 3785

Savic (Migration) [2019] AATA 3785 (2 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Borislav Savic

VISA APPLICANT:  Mr Dragan Savic

CASE NUMBER:  1701267

HOME AFFAIRS REFERENCE(S):   BCC2016/3657474 OSF2016/029221

MEMBER:Hugh Sanderson

DATE:2 July 2019

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 02 July 2019 at 2:24pm

CATCHWORDS
MIGRATION – refusal – subclass 155 (Five Year Resident Return) visa – lived overseas for almost 20 years – no compelling and compassionate reasons for departing Australia – substantial ties criterion not met -– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 155.212, 157.211

CASES
Lorenzo Paduano v MIMIA [2005] FCA 211

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 and Border Protection on 17 November 2016 to refuse to grant the visa applicant a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 October 2016. 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).

3. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.155.212 and cl.157.211 because the delegate found the visa applicant had been absent from Australia for a continuous period of five years or more and was not satisfied there were compelling reasons for his absence.

   Background

4. The visa applicant is a citizen of Bosnia-Herzegovina and is currently 61 years old. He was granted a Subclass 209 Citizens of the Former Yugoslavia (Displaced Persons) visa and entered Australia for the first time on 20 March 1995 as a permanent resident with his wife. They departed Australia on 11 September 1995 and returned to live in Bosnia-Herzegovina.

5. The visa applicant’s wife died on 3 January 2015. The visa applicant entered Australia on 13 April 2015 on a Subclass 600 Visitor visa and remained for three months. He next entered Australia again on 20 April 2016 on a Subclass 600 Visitor visa and remained for about six months, departing on 17 October 2016. The current application was then filed on 19 October 2016 after he returned to Bosnia-Herzegovina.

6. The review applicant is the visa applicant’s brother. He first entered Australia in April 1991 holding a Subclass 126 Skilled Independent visa. He became an Australian citizen in 1993. The visa applicant’s mother arrived in Australia on a Tourist visa on 30 October 1997. She was then granted the right to reside in Australia and became an Australian citizen in February 2001. She died in November 2016.

7. The review applicant claimed that he could not return to Australia over the period he was living in Bosnia-Herzegovina as his wife had been very ill and he was required to care for her. He claimed that she was not able to travel and so they could not return to Australia. Information was provided from her treating doctor stating the visa applicant’s wife suffered from malignant hypertension since the beginning of activities in Sarajevo (1992). Her health deteriorated in 2000 and she was diagnosed with various medical conditions. In 2006 she was required to have regular dialysis three times a week until she died.

8. The delegate who considered the application noted the following issues:

   ·Despite the claim that the visa applicant’s wife had medical problems since 1992, she met the health criteria for the grant of the Subclass 209 visa in 1994 and she travelled to and from Australia in 1995;

   ·There was little information which would indicate that the visa applicant’s wife was not able to return to Australia at any time before 2006, more than 10 years after they had departed Australia;

   ·There was little information of any business, cultural, or employment ties to Australia;

   ·The brother of the visa applicant arrived in Australia in 1991 and his mother arrived in Australia in 1997; and

   ·There was little further information of any ties that the visa applicant has in Australia.

9. Taking these matters into account, the delegate found the visa applicant had been absent from Australia for more than five years and that there were no compelling and compassionate reasons for departing Australia or for remaining out of Australia over that period, nor did he have any substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia. The delegate found the visa applicant did not meet the criteria for the grant of the visa in cl.155.212 and cl.157.212 and refused the application.

   Information to the Tribunal

10. The visa applicant provided a statement where the following was claimed:

    ·The visa applicant and his wife departed Australia to be able to look after his mother who was being threatened in Bosnia-Herzegovina and which, after she arrived in Australia, was the basis of her being given refugee status;

    ·After his mother departed Bosnia-Herzegovina, the visa applicant dedicated himself to look after his wife and was involved in humanitarian work from 1995 to 2001, establishing a housing co-operative;

    ·The visa applicant knew when his permanent resident visa expired and wished to go to the Australian embassy to renew it, but it was not possible as his wife was getting sicker; and

    ·The visa applicant entered Australia on Visitor visas because he did not realise that he could apply for a Return Resident visa at that time.

11. The review applicant made a statement where he made the following claims:

    ·The visa applicant’s wife had a number of health issues that were not reported to local doctors as she believed she would be able to get better without their assistance;

    ·In late 1999, the visa applicant’s wife was offered kidney dialysis, however, she rejected this offer;

    ·If the visa applicant’s wife was capable of long distance travel then she and the visa applicant would have returned to Australia at that time;

    ·There is no medical proof that can be provided of the visa applicant’s wife medical condition at this time;

    ·The visa applicant is the last member of the review applicant’s family living out of Australia and he has no family continuing to live in Bosnia-Herzegovina; and

    ·The visa applicant has made a lot of friends in Australia and has strong community ties.

12. Statements were provided by a friend of the visa applicant and his wife claiming the visa applicant’s wife had a series of medical problems which she hoped to cure by alternative medicine until she had a stroke and then required dialysis in 2006. Statements were provided by members of the Serbian community in Western Australia supporting the application and referring to the care the visa applicant gave to his mother.

13. The review applicant appeared before the Tribunal on 21 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife and the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Serbian and English languages.

14. The review applicant said that the visa applicant returned to Bosnia-Herzegovina in 1995 as their mother was living by herself and the visa applicant was concerned as to her welfare in light of the war that had been fought. Their parents divorced when they were young and they had been brought up by their mother. Their mother was living in a property she owned near Sarajevo as well as having a flat inside the city. He said the properties were sold in 1998 and the money given to the visa applicant who then paid off the government home he was living in. He said that his brother was still living in that unit.

15. The review applicant said that the visa applicant lost a leg while fighting with the Serbian or Bosnian Serb army in 1993 or 1994, before he first came to Australia. When he returned to Bosnia-Herzegovina he was receiving a pension and doing voluntary work through the church. His wife was working in a shop they owned selling clothes, jewellery and other things. He was not sure when she stopped working there.

16. The review applicant said the visa applicant did not come to Australia after his mother came to Australia in 1997 because his wife’s medical condition prevented her from flying. He said that there was no evidence to support this claim. He said that the visa applicant knew that it would be dangerous for his wife to fly due to her high blood pressure.

17. The review applicant said the visa applicant plans to help in the Serbian community in Australia. He said that he would be living with himself and his wife in Perth. He provided details of his children’s activities.

18. The review applicant’s wife said when the visa applicant returned to Bosnia-Herzegovina he became very religious and volunteered to do work for the church. This was mainly helping disabled war veterans. She said that he and his wife had a shop selling clothing and jewellery. She believed the shop was operating until 2006 and the visa applicant’s wife was working there in 2004 when she and her family visited Bosnia-Herzegovina.

19. The review applicant’s wife said the visa applicant returned to Bosnia-Herzegovina because he was a nationalist Serbian and believed that his mother was trapped in Bosnia-Herzegovina. She said that the visa applicant’s wife could function locally, but was not able to travel due to high blood pressure. She said that their family was also going through a difficult period at that time and they could not afford to support the visa applicant.

20. The visa applicant said that he was currently living in Sarajevo in a property he owned. He is in receipt of a pension. He was last in paid employment in 2006 when he and his wife had a shop. He provided a confused answer as to the amount of hours his wife worked in the shop. He said that after 2000 she would only work two or three days a week due to health concerns.

21. The visa applicant said that after his mother travelled to Australia he remained in Bosnia-Herzegovina as his wife became sick in 1996 and he had to care for her. He said that he and his wife could have returned to Australia together before 2000. He said that his wife’s health was deteriorating and he did not know if she would be able to fly due to her high blood pressure. He said that there was no formal medical opinion provided, but he had friends who were doctors who told him this. He claimed he could not remember if he or his wife travelled out of Bosnia-Herzegovina after they returned there in 1995.

22. The visa applicant claimed that he was involved in humanitarian work in Bosnia-Herzegovina. He claimed that he was organising assistance to people who needed help. He said that he was involved in organising the construction of an apartment. He gave money to construction workers for the construction of the apartment but they were involved in the East Sarajevo Construction Mafia. He claimed that at that time if he came to Australia people would think that he had misused the money and not the mafia.

23. The review applicant provided further information after the hearing about this last claim relating to the construction mafia in Bosnia-Herzegovina. The review applicant provided various untranslated newspaper clippings from 2001 showing photos of the visa applicant with the headlines referring to him being on a hunger strike fighting against the local mafia.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. At the time of application, the visa applicant must meet one of the alternative requirements set out in cl.155.212. These requirements essentially relate to the visa 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.

26. In this case, the visa applicant is seeking to meet cl.155.212(3). The visa applicant does not claim to meet any of the other subclauses in cl.155.212. As the visa applicant was outside Australia at the time of application, the visa applicant cannot meet cl.155.212(3A).

    Was the visa applicant lawfully present in Australia?

27. Subclause 155.212(2) is met if the visa 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.

28. The visa applicant has entered Australia on Visitor visas on two occasions over the period of five years immediately before the visa application. The total time that he has spent in Australia over that period has been less than nine months.

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

    Does the visa applicant meet the substantial ties criterion?

30. Subclause 155.212(3), as extracted in the attachment to this decision, requires that if the visa 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.

31. Additionally, the visa 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.

32. In addition to having substantial ties to Australia, cl.155.212(3) requires that the visa 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).

33. 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. The expression ‘compelling reasons for the absence’ refers to the visa applicant’s absence and it is the visa 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].

34. The visa applicant departed Australia on 11 September 1995 and returned to live in Bosnia-Herzegovina with his wife. He did not return to Australia until 13 April 2015, almost 20 years later. Accordingly the Tribunal is not satisfied that at the time of application, the visa applicant meets the prescribed residency requirements.

35. The Tribunal has first considered whether there are any compelling reasons for the visa applicant’s absence from Australia for five years or more immediately before the visa application.

36. The reason it was claimed the visa applicant returned to live in Bosnia-Herzegovina was that he was concerned as to the welfare of his mother. His mother left Bosnia-Herzegovina in 1997 and resided in Australia after that date. Although the visa applicant may have been concerned about the welfare of his mother in 1995, the fact that she had left Bosnia-Herzegovina and was living in Australia after 1997 means that any concern the visa applicant had about his mother would not have required him to remain in Bosnia-Herzegovina and is not, therefore, a compelling reason for his absence from Australia.

37. The visa applicant’s mother owned property in Bosnia-Herzegovina which was sold in 1998 and the proceeds were then given to the visa applicant. That he had access to these funds, which he used to pay off debt on the home in which he lived, indicates that he had sufficient financial means with which to return to Australia if he had wanted to do so.

38. It was claimed the reason the visa applicant did not return to Australia after his mother departed Bosnia-Herzegovina was the fact that his wife was suffering from multiple medical conditions. There is no contemporaneous information provided from any treating doctor or other independent source to corroborate the claim that the visa applicant’s wife was incapable of travelling or required support in 1998 or at any time until she was required to have dialysis in 2006.

39. The excerpt from the medical history of the visa applicant’s wife provided to the Department indicates that the visa applicant’s wife suffered from high blood pressure before she first travelled to Australia. It does not appear her medical condition caused any significant incapacity or prevented her from travelling. There is no information as to her being ‘constantly in therapy’ or how it would incapacitate her. It is reported that her condition significantly deteriorated in 2000 but after an admission to hospital she recuperated and only required outpatient follow-up examinations until 2006. This does not support a finding that any medical condition suffered by the visa applicant’s wife would have prevented them returning to Australia or would provide a compelling reason for his absence from Australia. There is no information which would indicate the visa applicant’s wife would not have received full and appropriate treatment if she had returned to Australia.

40. It was claimed the visa applicant’s wife was offered conventional medical treatment for her condition, but this was declined by her as she preferred to use alternative medicine. The fact that she declined conventional medical treatment indicates that her condition was not such that she was so incapacitated that she could not travel or that she was dependent upon the visa applicant for constant support. There is nothing to indicate that the visa applicant and his wife were prevented from returning to Australia.

41. The visa applicant and his wife operated a shop until 2006 when the visa applicant’s wife commenced dialysis. The visa applicant stated that she was working in the shop full time up to 2000, but after that was only working two or three days per week until 2006. The review applicant’s wife recalls visiting the visa applicant and his wife at the shop when they travelled to Bosnia-Herzegovina in 2004. There is no corroborative evidence to indicate the hours or the days the visa applicant’s wife was working in her shop until 2006. The Tribunal accepts that the shop ceased operation when the visa applicant’s wife was required to have dialysis in 2006. The fact that she was able to continue to manage and work in her shop until 2006 indicates she was not so incapacitated that any requirement to care for her provided a compelling reason for the visa applicant’s absence.

42. The visa applicant claims to have been involved in humanitarian work after he returned to Bosnia-Herzegovina in 1995. He claims to have undertaken a hunger strike in 2001 in protest against corruption within the building industry. He claims that he could not return to Australia at that time because it may have been considered that he was running away from allegations that he had misused money.

1. The fact that the visa applicant was involved in this voluntary work and willing to go on a hunger strike in 2001 indicates that he was not providing the degree of support for any medical condition his wife may have suffered that would provide a compelling reason for his absence.

2. The Tribunal accepts the visa applicant was involved in humanitarian work from 1995 to 2001. The visa applicant appears to have become involved in this work as he was determined to assist in the rebuilding of Bosnia-Herzegovina, and in particular the Serbian community within Bosnia-Herzegovina, after the end of the war. The Tribunal finds the reason for this was the visa applicant’s desire to reside and live in Bosnia-Herzegovina and was not a reason which would prevent him from returning to reside in Australia. The Tribunal finds that the wish the visa applicant had to see the successful rebuilding of Bosnia-Herzegovina and live there among the Serbian community does not provide a compelling reason for the visa applicant’s absence from Australia.

3. The visa applicant undertook a hunger strike in 2001. There is limited information before the Tribunal as to the events leading up to that hunger strike or its ultimate outcome. Although it is claimed the visa applicant felt he could not leave Bosnia-Herzegovina at that time due to allegations made against him, the newspaper articles provided by the review applicant do not indicate any adverse inference against the visa applicant, merely his protest in the hope of exposing corruption within the construction industry. There is no credible independent information that would indicate the visa applicant was under investigation or that he was prevented in any way from departing Bosnia-Herzegovina for any moral or legal reason because of any such allegation. The Tribunal is not satisfied that any protest the visa applicant was engaged in or allegation made against him during the years around 2001 provides a compelling reason for the visa applicant’s absence.

4. A letter was provided from the District Public Prosecutors Office in Sarajevo dated 2 October 2018 reporting the claim from the visa applicant that on 14 November 2017 he received messages with offensive and threatening content from another individual. No further information was provided in relation to that report and there is nothing which would indicate that the allegation made by the visa applicant in 2017 would provide a compelling reason for his absence at any time.

5. The visa applicant’s wife found, while she was in Australia, that she was unable to conceive a child naturally. It was suggested that she may have been able to fall pregnant through in vitro fertilisation. The visa applicant claimed that if his wife had wanted artificial fertilisation they would have stayed regardless of the fact that his mother was in a difficult situation. The Tribunal does not see any reason why the fact the visa applicant’s wife could not fall pregnant naturally provides a compelling reason for his absence from Australia. Although it may highlight the reason why the visa applicant and his wife left Australia in 1995, there is nothing to indicate that the visa applicant and his wife participated in or sought any fertility treatment at any time after they returned to Bosnia-Herzegovina, or that this issue would be relevant in providing a compelling reason for his absence from Australia or why he departed Australia.

6. The Tribunal has considered all the circumstances of the visa applicant both individually and cumulatively in considering whether there were compelling reasons for his absence after he departed Australia in 1995. The Tribunal accepts that in 2006 the visa applicant’s wife was on dialysis which would have prevented her from returning to Australia and this would provide a compelling reason for the absence of the visa applicant. This was, however, more than 10 years after the visa applicant had departed Australia. The Tribunal finds that at that time the visa applicant decided to re-establish their lives in Bosnia-Herzegovina as the conflict had ended and they wanted to reside there. They did not remain in Bosnia-Herzegovina for any reason for which they felt they were compelled to remain. In taking into account all other aspects of the circumstances of the visa applicant as set out above, the Tribunal is not satisfied that there were compelling reasons for his absence from Australia over that period.

7. In all the circumstances, the Tribunal is not satisfied that there are compelling reasons for the absence of the visa applicant from Australia for a period of more than 10 years after he departed Australia.

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

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

10. The review applicant has only sought to review the decision to refuse the visa applicant the Subclass 155 visa. No information has been provided and no claim has been made that the visa applicant meets the criteria for a Subclass 157 visa. For the reasons set out above, the Tribunal is not satisfied there are compelling and compassionate reasons for the visa applicant’s absence from Australia and therefore he does not meet the criteria for the grant of a Subclass 157 visa.

    DECISION

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

    Hugh Sanderson
    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.