Sidhu (Migration)

[2023] AATA 4408

Sidhu (Migration) [2023] AATA 4408 (20 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Samson Singh Sidhu

CASE NUMBER:  2005758

HOME AFFAIRS REFERENCE(S):          BCC2019/6734836

MEMBER:Deputy President Justin Owen

DATE:20 December 2023

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 20 December 2023 at 3:49pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – lawfully present in Australia as holder of permanent visa for two years in period five years before application made – applicant not in Australia as holder of permanent visa at any time in that period – last permanent visa expired more than 10 years ago – not necessary to consider substantial ties – not member of family unit of brother, now Australian citizen – no discretion to waive requirements – not eligible for related subclass visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), rr 1.03, 1.12(2), Schedule 2, cl 155.212(2), (3), (3A), (4)

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 3 March 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 18 December 2019. 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 applicant, who was in Malaysia, appeared before the Tribunal via video conference on 18 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the applicant’s brother Mr Bobby Singh Sidhu  who was in the United Kingdom.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. As the applicant was outside Australia at the time of application, the applicant cannot meet cl 155.212(3A). The Tribunal notes the applicant, in his written submission of 18 March 2020, stated he believed he met the requirements of cl 155.212(3A) on the basis he was currently in Australia at that time, and he had not been absent from Australia for a continuous period of more than five years since the grant of his most recent visa.  The Tribunal explained to him that cl 155.212(3A) was a time of application criteria, and he was in fact outside of Australia at the time of application.  The applicant confirmed the visas he held to travel to Australia over the last five years were Electronic Travel Authorities (subclass 601).  The Tribunal explained to the applicant these were not permanent visas and did not provide the applicant with the status of a ‘permanent resident’.  The applicant accepted the Tribunal’s explanation.

   Was the applicant lawfully present in Australia?

8. 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.

9. The Tribunal noted from the decision record the 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 his visa application on 18 December 2019. 

10. The applicant confirmed that he had not been present in Australia at all as the holder of a permanent visa in the five years preceding the lodgement of his visa application on 18 December 2019.  The applicant confirmed he 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 18 December 2019.  The applicant stated his last permanent visa had in fact been a Resident Return (BB-155) visa that expired on 1 April 2008.    

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

    Does the applicant meet the substantial ties criterion?

12. 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.

13. 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?

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

15. 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).

16. The applicant in his oral testimony at the Tribunal’s hearing confirmed that he had last departed Australia on 14 December 2019 as the holder of an Electronic Travel Authority (subclass 601).  He lodged the Resident Return (BB-155) visa application which is the subject of this review several days later.

17. The applicant confirmed in his oral testimony that the last permanent visa he held in Australia was a Resident Return (BB-155) visa that he was granted on 1 April 2003 and expired on 1 April 2008. 

18. Given the applicant did not hold a permanent visa at the time of application for the visa currently under review on 18 December 2019, and he was not an Australian permanent resident or citizen when he last departed Australia, prior to lodging his application, the applicant does not meet the requirements of cl 155.212(3)(a).

19. The Tribunal notes from both the applicant’s testimony and the delegate’s decision record he provided that his last permanent visa expired on 1 April 2008.  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 his visa application.  The applicant confirmed his last permanent visa expired on 1 April 2008 and acknowledged this was more than 10 years prior to lodging his current application.  The Tribunal finds that as the applicant last held a permanent resident visa on 1 April 2008, more than 10 years before his application on 18 December 2019, he does not meet cl 155.212(3)(b).

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

21. 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.  The Tribunal notes that the applicant never in fact, as outlined in the delegate’s decision record the applicant provided, entered Australia on the permanent Resident Return (BB-155) visa that he was granted on 1 April 2003 which expired on 1 April 2008, which is a requirement for cl 155.212(3)(a) and (b).      

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

    Does the applicant meet the family member criterion?

23. 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.

24. The applicant submitted his brother Mr Bobby Singh Sidhu has been granted a Subclass 155 visa in 1999.  He discussed the visa at the Tribunal’s hearing, stating his brother had become an Australian citizen in around 2008.

25. The Act provides that ‘member of the family unit’ of a person has the meaning given by the Regulations.  Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.

26. Regulation 1.12(2) states relevantly that for post 19 November 2016 applications, a person is a member of the family unit of another person (the applicant being the ‘family head’) if the person:

    (a)is a spouse or de facto partner of the family head; or

    (b)is a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de facto partner) and:

    (i)has not turned 18; or

    (ii)has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or

    (iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

    (c)is a dependent child of a person who meets the conditions in paragraph (b).

27. Mr Bobby Singh Sidhu is neither the spouse, de facto partner, child, or step-child of the applicant.  There is no suggestion of him being a dependent of the applicant.

28. Mr Bobby Singh Sidhu is therefore not a ‘member of the family unit’ of the applicant for the purposes of this review.

29. The Tribunal furthermore notes Mr Bobby Singh Sidhu would no longer be the holder of a subclass 155 visa since being granted his Australian citizenship many years ago – prior to the lodgement by the applicant of his application on 18 December 2019.   

30. The applicant confirmed in his oral testimony that no other member of his family unit had been granted a subclass 155 visa, and that visa was still in effect. 

31. The applicant did not submit any evidence or make any claim that he was the member of the family unit of a person who met the requirements of cls 155.212(2), (3) or (3A) and has lodged a separate application for a Class BB visa.

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

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

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

35. 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.

36. The applicant confirmed in oral testimony he was not the holder of a permanent visa at any time in the five-year period preceding his application for the visa on 18 December 2019.

37. The applicant furthermore confirmed he was outside of Australia at the time of application on 18 December 2019. 

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

39. The applicant also does not meet cl 157.212(3).  The applicant confirmed at the Tribunal’s hearing he was not the member of a family unit of a person who has been granted a subclass 157 visa that is 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).

40. The applicant’s brother in his oral testimony to the Tribunal discussed his desire for his brother to be able to remain in Australia permanently with him.  The Tribunal acknowledges the applicant has a long history of visiting Australia, including completing his university studies at Curtin University.  He has been involved in business.  The applicant stated he sold his part-ownership share of a successful business, Healthland Australia Pty Ltd, last year.  The applicant however does not meet the time of application requirements for the grant of this visa.  The Tribunal does not, as it explained at the hearing, have the discretion to waive these requirements.     

    DECISION

41. 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.