Srilakondee (Migration)

[2020] AATA 5048

Srilakondee (Migration) [2020] AATA 5048 (13 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Rungtip Srilakondee

VISA APPLICANT:  Mr Thitipan Puangpee

CASE NUMBER:  1908397

HOME AFFAIRS REFERENCE(S):          BCC2018/3326261

MEMBER:Hugh Sanderson

DATE:13 October 2020

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 13 October 2020 at 3:05pm

CATCHWORDS

MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – no substantial business, cultural, employment or personal ties with Australia – mother’s permanent visa grant – applicant spent less than 16 days in Australia – pursued university study in Thailand – living independently – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 155.212, 157.212

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 31 January 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 3 September 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).

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.155.212(3) because the delegate was not satisfied that at the time of application the visa applicant had substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia.

   Background

4. The visa applicant is a citizen of Thailand and is currently 25 years old. The review applicant is his mother. The visa applicant, his mother and his brother were granted Subclass 309 Partner (Temporary) visas on 3 June 2011. The review applicant arrived in Australia on that visa on 28 June 2011 and the visa applicant and his brother first entered Australia on those visas on 9 November 2011. The visa applicant was 16 years old at the time he was granted that visa. The visa applicant and his brother departed six days later on 15 November 2011. At the time of the application the visa applicant had not returned to Australia at any time.

5. The review applicant’s sponsor withdrew his sponsorship of the review applicant and her children for the Partner visa on 22 September 2011, prior to the visa applicant and his brother arriving in Australia. The review applicant made a claim that she had suffered family violence committed by the sponsor, which was accepted by the Department.

6. The visa applicant, his brother and his mother were granted Subclass 100 Partner (Residence) visas on 23 November 2012. The visa applicant’s mother has resided primarily in Australia since arriving in 2011. His brother returned to Australia on 25 April 2015 when he was 18 years old and has resided in Australia since then.

7. The applicant applied for the Subclass 155 Return Resident visa while he was overseas. Although he claimed in his application that he had been present in Australia as a permanent resident for periods totalling more than two years over the last five years, the applicant’s movement records show that at the time of the application he had not spent any time in Australia since he departed on 15 November 2011.

8. The review applicant provided a statement explaining that she had provided an incorrect answer in the application. She stated that she had applied for the visa for the visa applicant and her other son who had been resident in Australia for more than two years over the last five years. The review applicant claimed that the visa applicant returned to Thailand to complete his studies and gain employment in the medical field. He now wanted to reside with his mother in Australia.

9. The Department requested that the visa applicant provide information as to the compelling reasons for departing Australia and any ties he had to Australia. The visa applicant and the review applicant provided statements where the following was claimed:

   ·When the review applicant came to Australia her husband promised to bring her sons to Australia, however, he declined to make any attempts to do so;

   ·The review applicant was abused during her relationship with her sponsor and she left him after two years (sic);

   ·The visa applicant had now graduated from university and was working as a doctor in Thailand;

   ·The visa applicant’s father was an alcoholic and had severed all ties with the visa applicant;

   ·As the visa applicant had commenced his studies at university in Thailand, he thought that it would be best to complete that degree before he came to Australia; and

   ·The visa applicant has now been separated from his brother for three years.

10. The delegate who considered the application found the following:

    ·The applicant had not been present at any time in Australia over the five years prior to filing the application and accordingly did not meet the criteria in cl.155.212(2);

    ·The visa applicant had not spent any time in Australia as a permanent resident;

    ·When the visa applicant last departed Australia, he had not been granted the right to reside permanently in Australia;

    ·The visa applicant’s activities outside Australia have not been of benefit to any Australian citizen or to Australia as a whole;

    ·There was nothing to indicate that the visa applicant has had any involvement in any cultural activities in Australia which would be of benefit to Australia;

    ·Although the visa applicant’s mother is living in Australia, she is not a member of his family unit;

    ·The delegate was not satisfied that when considered as a whole there were any ties to Australia that were of benefit to Australia and accordingly the applicant did not meet the criteria in cl.155.212(3);

    ·As the applicant was overseas at the time of the application, he did not meet the criteria in cl.155.212(3A);

    ·As the applicant was not a member of the family unit of the person who met the criteria for the grant of a Return Resident visa, he did not meet the criteria in cl.155.212(4); and

    ·As the applicant had not been in Australia for more than five years and was not a member of the family unit of a person who met the criteria for a Subclass 157 visa, he did not meet any of the criteria in cl.157.212.

11. As the applicant did not meet any of the criteria in cl.155.212 and cl.157.212 the application was refused.

    Information to the Tribunal

12. After the Department refused the applicant the grant of the Return Resident visa, the applicant entered Australia on a Visitor visa, arriving on 20 February 2020 and departing Australia on 18 June 2020.

13. The visa applicant provided a statement where he made the following claims:

    ·The reason why he last departed Australia was because he had started university and his mother thought it best that he continued his studies to complete a degree as a doctor to enhance his contribution to Australia;

    ·The visa applicant’s mother had been a victim of domestic abuse;

    ·The visa applicant has substantial ties to Australia being his mother and brother who have offered him food and lodgings; and

    ·The visa applicant was absent from Australia for five years to be able to complete his university studies to become a doctor.

14. The review applicant provided a statement where she made the following claims:

    ·The review applicant brought her sons to Australia with the assistance of a Women’s Refuge Centre;

    ·She was subject to domestic violence from her former husband who never assisted her in bringing her children to Australia;

    ·As the visa applicant was a top scholar, she encouraged him to complete his medical degree;

    ·The visa applicant’s father is an alcoholic and has severed all ties with the visa applicant; and

    ·It was a mistake not to bring the visa applicant to Australia earlier, but this was only because it was felt that obtaining the medical degree would contribute to Australia.

15. The review applicant, with the assistance of her partner, Mr Meyers, appeared before the Tribunal on 2 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

16. The review applicant said that she ended her relationship with her former husband within about two months of arriving in Australia. She said that she was forced to leave the home and then went to live with her sister and her husband and family. She had to leave that home as she was harassed by her brother-in-law’s son. She then went to live in shared accommodation. She started living with her current partner about four years ago.

17. The review applicant said that her two sons lived in Bangkok by themselves all the time she was in Australia. She would send money to support them and they would look after themselves. She said when the two boys came to Australia in 2011, she was told that she could bring them for one week and then they would be able to travel to Australia whenever they wanted. She said that as she was not able to have them live in Australia and as it was cheaper for them to stay in Thailand, they remained living in Thailand when they were at school. Her youngest son came to live in Australia once he finished high school. As the visa applicant was going on to university, she thought it better that he remained in Thailand.

18. The review applicant said that her mother and three brothers continue to live in Thailand, but not in the same province that the visa applicant lives. She does not know any details about the visa applicant’s father or his family and does not believe the visa applicant has any contact with them. She said the visa applicant is not working as he is waiting to see if he can come to Australia. He was hoping to apply for a scholarship in Australia.

19. The review applicant said that she would travel to Thailand about once a year. She said that she would use this opportunity to see her children and also her other family members. She said that she did not arrange to have her children travel to Australia as it would be too expensive to pay for two tickets to spend any time in Australia. She said that she sent money to her children in Thailand, but did not have any evidence to support this.

20. Mr Meyers said that he felt responsible for the situation the visa applicant was now in. When he started his relationship with the review applicant, he said that it would be better for the visa applicant to complete his studies in Thailand before he came to Australia. He felt it was because of this advice that the visa applicant did not come to Australia at any time over the five years prior to the current application.

21. The visa applicant said that he was living by himself in an apartment. He was not working at the moment and was considering applying to undertake a master’s degree in Thailand. He said that he is supporting himself from the savings he obtained from the two years that he was working as a medical technologist. He said that he has no contact with his father’s family in Thailand and has little contact with his mother’s family as they live in a different province.

22. The visa applicant said that he did not travel to Australia when his mother was living in Australia because it was cheaper for her to travel to Thailand and her to then see all her family members. He said that his mother paid for him to be able to attend university. He said that he did not live in Australia after he was granted the visa because he thought he should finish high school and then wanted to finish university.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The issue in this case is whether the applicant meets the criteria in cl.155.212(3). No claim has been made that the applicant meets any alternative criteria.

    Does the applicant meet the substantial ties criterion?

25. 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.

26. 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?

27. At the time of the application, the visa applicant had only spent 16 days in Australia. This was from 9 November 2011 to 15 November 2011 when he was 16 years old. He held, at that time, a Subclass 309 Partner (Temporary) visa. Although he was granted a Subclass 100 Partner (Residence) visa on 23 November 2012, he did not enter Australia at any time holding that visa. He only returned to Australia after he had made the current application after he was granted a Subclass 600 Visitor visa in 2020.

28. There is no information before the Tribunal which would indicate the visa applicant has any business, cultural, or employment ties with Australia. He has only ever worked in Thailand and has not taken any steps to seek any employment or further education in Australia. He indicated that he would like to obtain a scholarship to be able to study in Australia, however there is nothing to indicate he has taken any steps to enquire or commence studying in Australia.

29. The only claim as to his ties with Australia is the fact that his mother has resided in Australia since 28 June 2011 after she was granted the Subclass 309 Partner (Temporary) visa, and his brother has resided in Australia since 25 April 2015 while he held a Subclass 100 Partner (Residence) visa. It is noted that the visa applicant’s brother had been living with the visa applicant in Thailand until he returned to Australia after completing high school and turning 18 years of age. The visa applicant has a number of sisters who also live in Australia, however, no claim has been made that the visa applicant has any close personal ties with them.

30. The visa applicant’s mother has generally returned to Thailand at least every year to spend time with her family there. This has included the visa applicant and his brother, when his brother was residing in Thailand. The visa applicant’s brother has only returned to Thailand on one occasion since residing primarily in Australia, that being for 15 days in August 2016.

31. The visa applicant has completed a university degree. He has been employed as a medical technician for two years and is now relying upon the income he earned over that period to support himself. He is considering undertaking a master’s degree in Thailand. Although the visa applicant’s mother claimed that she was continuing to financially support him, there is little information to corroborate this claim. It is inconsistent with the statement by the visa applicant that he was supporting himself from the income he had previously earned. The Tribunal does not accept that the review applicant is supporting the visa applicant and finds the visa applicant is financially independent of the review applicant.

32. The visa applicant’s mother has re-partnered and is living with her new partner. Her relationship with the sponsor of her Partner visa ended within two months of her arrival in Australia due to family violence. She has continued her life in Australia since then, working and providing support for her children in Thailand. She has re-partnered and has been living with her current partner for the last four years. She is financially independent of the visa applicant.

33. Although the Tribunal accepts the visa applicant and his mother have a close relationship, and that the visa applicant’s mother may have always intended for both her children to live in Australia, the Tribunal does not accept the nature of the relationship between the visa applicant and his mother and brother is a substantial personal tie which is of benefit to Australia.

34. The visa applicant has lived independently of his mother for a number of years. Although he received financial support from her when he was a student, he is now able to support himself from the income he earned when he was working as a medical technician for over two years.

35. At the time of the application, the visa applicant had not lived in any continuing relationship with his mother for over seven years. Although the Tribunal accepts that the visa applicant’s mother provided him financial support while he was a student, the visa applicant was able to develop his own life and associates while he was living in Thailand. It was claimed that the visa applicant did not have any continuing relationship with his biological father or any other close relatives who continue to live in Thailand. This has not prevented him from pursuing his education and career and maintaining his lifestyle in Thailand. He has had little ongoing connection with Australia and there is nothing to indicate that he ever considered undertaking any study in Australia, even for a short period.

36. It was claimed the only reason the visa applicant remained in Thailand was to pursue his studies at university. Although this may be true, this indicates that the visa applicant did not have any such close personal ties that he was not able to continue to live independently in Thailand. As indicated above, there is nothing to indicate that the visa applicant made any enquiry as to his capacity to undertake study in Australia. The applicant continued to reside in Thailand after he completed his university studies and gained employment in Thailand.

37. The Tribunal has considered all the circumstances of the visa applicant and his family in Australia, and in particular his mother and brother, both individually and cumulatively. The visa applicant has previously been granted a Subclass 600 Visitor visa to be able to spend time with his family in Australia. There is nothing to indicate that he would not be able to apply for and be granted Visitor visas in the future to spend time with his mother and any other relatives in Australia. The Tribunal is not satisfied that the nature of the relationship the visa applicant has with his family in Australia and in particular his mother is a substantial personal tie that is of benefit to Australia.

38. Accordingly, the Tribunal is not satisfied that at the time of application the applicant has substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia.

39. As the Tribunal is not satisfied that at the time of application the applicant had substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia it is not necessary to consider the other criteria in cl.155.212(3).

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

41. For the reasons above, the Tribunal finds the visa applicant does not meet the criteria for the grant of a Subclass 155 visa. No claims have been made that the applicant meets the criteria for the grant of a Subclass 157 visa.

    DECISION

42. 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.