Singh (Migration)

[2021] AATA 2047

Singh (Migration) [2021] AATA 2047 (10 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dharmindher Singh

VISA APPLICANT:  Miss Satvinder Kaur

CASE NUMBER:  1922754

HOME AFFAIRS REFERENCE(S):          BCC2018/4596541

MEMBER:Michael Cooke

DATE:10 June 2021

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(3) of Schedule 2 to the Regulations

Statement made on 10 June 2021 at 4:03pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – last departed as holder of permanent visa more than 10 years ago – substantial ties of benefit to Australia – family members are Australian citizens, and potential contribution to economy and community through business and charitable experience – compelling reasons for absence – establishment and running of successful business, IVF treatment and care for aged parents – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 155.212(3)

CASE
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 Home Affairs on 31 July 2019 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 19 October 2018. 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). 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 cl.155.212(3) because the delegate found she did not have substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicant can establish has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia and that she has ‘compelling reasons for her (lengthy) absence’.

   Lawful presence/substantial ties

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

   Does the applicant meet the substantial ties criterion?

8. 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.

9. 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?

10. The applicant has addressed this issue in her Departmental documentation as follows:

    ·I studied in Monash University, Melbourne, Australia

    ·My only natural brother, his wife and 2 kids and my uncle and his family live in Perth and are all Australian citizens.

    ·Myself and my 2 year old son are Singapore citizens and ready to join them in Australia to be a family support system.

    ·I am a senior change management and organizational development consultant who has contributed significantly to the economies I have lived in and will do the same in Australia when I migrate. My estimated annual pre-tax income is AUD110,000

    ·I have operated a successful business in Singapore in 2001 and in the United Arab Emirates in 2006. I plan to do the same by opening a business in Australia and ensure I contribute to the economy.

    ·I am a certified Prosci Change Management Practitioner and a Certified Gallup Strengths Coach and have coached close to over 5000 middle management and senior leaders since 2005. I plan to do the same in Australia.

    ·I plan to purchase real estate in Australia and contribute to the economy.

    ·I plan to use my social cause Inspire Good to help build the cultural appreciation of Australia among the young. 2018 will mark the 3rd year Inspire Good will raise funds to be donated to the elderly. I can validate these statements.

11. The Tribunal finds from the evidence before that the applicant has substantial cultural and personal ties with Australia which are manifestly of benefit to Australia.

12. Accordingly, the Tribunal is satisfied that at the time of application the applicant meets the criterion.

    Does the applicant meet the prescribed residency requirements?

13. 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 5 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 5 years since last departing Australia as a citizen or permanent resident (unless there are compelling reasons for the absence).

14. Departmental records indicate that the applicant last departed Australia as a holder of a permanent visa on 02 February 2008. The applicant has been absent from Australia for more than 5 years immediately before lodging the application. The applicant applied for the visa (the subject of this review) on 19 October 2018.

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

    Whether the applicant has ‘compelling reasons for the absence’

16. 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 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].

17. The applicant indicated to the Department that the reasons for her long-term absence were as follows:

    ·The following is a summary that involve my challenge in fertility treatments as I tried to have a baby, my career, family, my father's death and family financial challenges.

    1999

    ·I graduated with my Bachelor of Arts from Monash Melbourne as a distance education student while working full time as a Marketing Communications specialist with PICO International in Singapore. This is during the 1999 Asian market crisis with the crash of the Indonesia banking system that led to a series of work redundancies throughout Asia.

    2003

    ·I got a job offer from the UAE that helped me support the family. Hereon, I started seeking medical help to have a baby as a single unmarried female as my fertility results (available) failed and I had to visit several doctors and centres to find solutions.

    2007/2011

    ·As I continued to solve my fertility issues, the global market crashed in late 2007 and we tried to survive the next years with what we had. This was the biggest crisis since the Great Depression in the 1930s.

    ·From Singapore to Dubai to India, I continued to seek several medical advice on fertility  and then my father  died of a heart attack (death certificate available) on the day I flew to India (proof available) to surprise him about moving to Australia. Thereon, I was held back financially again and had my mom to support.

    2016-2018

    ·At age 44, I finally had a baby and had some help in Singapore to care for my child as a single mother. I also started the costly process of migration agents and assessing authorities how I could get to Australia.

    ·The Australia High Commission in Singapore finally confirmed that I could apply for my RRV to join my family members who are Australian citizens.

    ·We are ready to migrate and permanently live in Australia and make it home.

18. The Tribunal has considered the applicant’s ‘compelling reasons for the absence’ above within the rubric of Paduano and which was, itself, a case concerning a person who had spent many years overseas before wishing to return to Australia.

19. It is apparent from her recounting of her recent history that the applicant’s life has been beset by personal travails - such as the various vicissitudes in her continuing (and eventually successful) desire to be a mother. Her cultural commitment (‘moral necessity’) to her aged parents was also profound. The unexpected death of her father in India initiated a continuing element in prolonging her absence - that being the sudden need to care for her widowed mother.

20. At a professional level, she has been very successful. Her skills (gained initially from Australian education) and then honed successfully overseas - would be of significant benefit to Australia - in the opinion of the Tribunal. Her earnest desire is to be able to transition these advanced skills and experience into the Australian economy. Financial necessity as extrapolated in her submission was a ‘forceful’ reason for her pronged absence.

21. Her desire to re-join her brother (an Australian citizen) and his family and make a joint family life with her son in Australia is another significant ‘compelling reason’ she has advanced. The Tribunal finds that the desire to reunite the family in Australia is a further ‘forceful’ physical reason for waiver of the prescribed residency requirements.

22. The Tribunal is satisfied from her explanation that the applicant was ‘compelled’ by all the aforementioned ‘reasons’ to remain overseas and they, in turn, account for her prolonged absence.

23. Thus, the Tribunal finds the reasons advanced by the applicant for the absence are sufficient to ground waiver of the prescribed residency requirements.

24. Given these above findings, the applicant meets cl.155.212(3).

25. 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

26. 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(3) of Schedule 2 to the Regulations

    Michael Cooke
    Senior 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.