Sultani (Migration)

[2020] AATA 5902

Sultani (Migration) [2020] AATA 5902 (27 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ahmad Wasim Sultani

VISA APPLICANT:  Ms Saleha SULTANI

CASE NUMBER:  1907548

HOME AFFAIRS REFERENCE(S):          BCC2018/3372927

MEMBER:Kira Raif

DATE:27 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 27 October 2020 at 11:28am

CATCHWORDS
MIGRATION –subclass 155 (Five Year Resident Return) visa –applicant was outside Australia at the time of application – outstanding application for permanent residence in the US–30 year absence of the visa applicant from Australia–no compelling reasons for the visa applicant’s absence– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 155.212

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 Home Affairs on 19 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 4 September 2018. The visa applicant’s partner and daughter made separate applications for the visas and are the subject of separate decisions. 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 there were compelling reasons for the visa applicant’s absence from Australia. The visa applicant’s son and the Australian relative (the ‘review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 27 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 Dari and English languages.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   Relevant law

6. 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).

7. 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.

   The requirements of cl. 155.212

8. The visa applicant’s immigration history is set out in the primary decision record. It indicates that the visa applicant last departed Australia in September 1989. The visa applicant has not travelled to Australia since that time. The visa applicant provided with her application evidence that she sought residence in the USA in 2011 and made another application to remain in the US in 2015.

9. As noted elsewhere, the primary decision record indicates that the visa applicant last departed Australia in September 1989 and has not been to Australia since that time. The Tribunal is not satisfied the visa 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).

10. As the visa applicant was outside Australia at the time of application, the applicant cannot meet cl.155.212(3A). There is no evidence that the visa 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 visa applicant does not meet cl. 155.212(4). The visa applicant is seeking to meet cl.155.212(3).

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

11. Subclause 155.212(3) 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.

12. The primary decision record indicates that the delegate accepted in this case that the visa applicant has substantial family ties with Australia because the visa applicant’s son is an Australian citizen, by virtue of being born in Australia to Australian parents.  However, the review applicant’s written submission to the Tribunal indicates that he left Australia at the age of 4 months, has been resident in the US and is presently seeking a US permanent residence permit. He has a partner in the US. That is, despite being an Australian citizen, Mr Wasim Sultani has spent virtually no time in Australia since his birth. He has not demonstrated any links to Australia, has not expressed any desire to establish residence in Australia, nor has made any arrangements to do so. His evidence is that his preference is to remain in the US and that he has an established life in the US. In their submission of 19 October 2020, the visa applicants confirmed that they have an outstanding application for permanent residence in the US. In the Tribunal’s view, the mere fact that one holds Australian citizenship is not sufficient to establish that close family members have substantial ties to Australia which are of benefit to Australia. There must be a practical link to this country, not one that only exists on paper by virtue of a citizenship grant to a related family member. As the visa applicant’s son has not resided in, nor visited Australia for over thirty years and since a very young age, has not demonstrated any connection to Australia and has no intention of establishing residence in Australia, the Tribunal is not satisfied that in such circumstances, the son’s Australian citizenship evidences the visa applicant’s substantial tie with Australia that is of benefit to Australia.

13. In oral evidence the review applicant told the Tribunal that his parents and sister intend to remain in the US and have no ties to Australia. The review applicant explained that the family was facing removal from the US and need to show full cooperation and they sought the visas for that purpose. The applicant’s representative explained that the US authorities have been trying to remove the family from the US and because of their past nationality in Australia, the authorities wanted to remove the family to Australia. It was necessary to show that the family could move to Australia and hence they applied for the Resident Return visas and the review. It was necessary to show that the family was cooperating with the foreign government to facilitate their removal. The present application is a way to show to the US immigration authorities that the family had engaged with the Australian government and had done everything they can to return to Australia.

14. The Tribunal has formed the view that the review applicant’s Australian citizenship status is not sufficient, in the particular circumstances of this case, to establish a tie to Australia.  The visa applicant does not claim to have any other ties to Australia and has not provided evidence of having any other ties to Australia. On the evidence before it, the Tribunal is not satisfied the visa applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia. The Tribunal is not satisfied the visa applicant meets cl. 155.212(3) and cl. 155.212.

    Are there compelling reasons for the absence?

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 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).

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 visa applicant’s immigration history, as noted above, indicates that the applicant had departed Australia in 1989 and has not travelled to Australia since that time. The Tribunal finds that the visa applicant has been continuously absent from Australia for 5 years or more immediately before the application. The visa applicant cannot meet cl. 155.212(3) unless the Tribunal is satisfied there are compelling reasons for the absence.

18. The visa applicant provided with her application evidence that her son suffers from a serious medical condition. The visa applicant stated that the family left Australia in order to seek specialist medical treatment in the US. The Tribunal is prepared to accept that evidence. However, the Tribunal is not satisfied that this was the reason for the 30 year absence of the visa applicant from Australia. The legislation is not limited to consideration of the reasons for the visa applicant’s departure from Australia but requires consideration of the reasons for the absence. Relevantly, cl 155.212(3) refers to the period of absence of 5 years of more immediately before the application was made unless there are compelling reasons for the absence. Thus, the period of absence of 5 years before the application was made is relevant and not only the reasons for the initial departure from Australia. The visa applicant has not established that in the five years before the application was made, there was a need for specialist treatment in the US or that there was another compelling reason for her absence from Australia.

19. In oral evidence, the review applicant told the Tribunal that the family left to seek medical treatment and there had been no other reason for the absence. The review applicant said his brother continues to receive treatment, which has been satisfactory. The review applicant said that the family had not considered seeking that treatment in Australia, given that they have established themselves comfortably in the US. The review applicant said that his family had established life in the US and there had been no reason to return to Australia.

20. There is no satisfactory evidence before the Tribunal concerning the brother’s ongoing treatment or the need for such treatment at the time of this decision. Importantly, the review applicant’s evidence to the Tribunal is that the family has not explored the availability of suitable treatment in Australia. The review applicant’s evidence indicates that the reason for the visa applicant’s absence from Australia is because the family has established life in the US and have no need to return to Australia. In the Tribunal’s view, that is the reason for the visa applicant’s absence from Australia.

21. The Tribunal finds that the visa applicant has been absent from Australia for a continuous period of 5 years or more immediately before the application for the visa. The Tribunal is not satisfied there are compelling reasons for the absence. For that reason also, the Tribunal is not satisfied the visa applicant meets cl. 155.212(3) and cl. 155.212.

22. The Tribunal has also considered whether the applicant meets the requirements for the grant of the Subclass 157 visa. Clause 157.212(2)(a) requires the applicant to have been lawfully present in Australia for a period of, or periods that total, not less than 1 day in the period of 5 years immediately before the application for the visa. The primary decision record indicates that the visa applicant last departed Australia in September 1989 and has not travelled to Australia since that time and the review applicant confirmed this information in his oral evidence to the Tribunal. The Tribunal is not satisfied the visa applicant had been 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. The visa applicant does not meet cl. 157.212(2). There is no evidence that the visa applicant is a member of the family unit of a person who has been granted the subclass 157 visa or meets the requirements of subclause 157.212(2). The Tribunal is not satisfied the visa applicant meets cl. 157.212(3) and cl. 157.212.

    Conclusion

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

    DECISION

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

    Kira Raif
    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.