Suryapranata (Migration)

[2020] AATA 5066

Suryapranata (Migration) [2020] AATA 5066 (14 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Eva Lenfina Suryapranata

VISA APPLICANT:  Ms Fie Boen Lim

CASE NUMBER:  1910976

HOME AFFAIRS REFERENCE(S):          BCC2018/5483146

MEMBER:Hugh Sanderson

DATE:14 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 14 October 2020 at 1:15pm

CATCHWORDS

MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – no substantial business, employment, cultural or personal ties with Australia – spent only 553 days in Australia – adult daughter in Australia independent of applicant – husband ceased business in Australia 15 years ago – applicant had no paid employment in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 10 April 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 6 December 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 the visa applicant had substantial business, employment, cultural or personal ties with Australia that were of benefit to Australia or that there were compelling reasons for her absence.

   Background

4. The visa applicant is a citizen of Indonesia and is currently 68 years old. The review applicant is her daughter. The visa applicant’s husband was granted a Subclass 127 Business Owner visa in 1998 and the visa applicant and her son and daughter were granted the same visa on the basis of being members of the family unit of a person who met the primary criteria.

5. After being granted the visa, the visa applicant travelled to Australia on 2 March 1998 and remained for nine days, departing again on 11 March 1998. Since then, she has travelled to Australia on 33 separate occasions. For the majority of those occasions, she remained in Australia for less than 20 days. On only one occasion did she remain in Australia for a period of more than one month, being a period of one month and nine days.

6. The visa applicant has been granted multiple Subclass 155 Five Year Resident Return visas. She was most recently granted Return Resident visas on 19 August 2015 and 13 October 2016, the last visa expiring on 13 October 2017. She applied for the current visa on 6 December 2018.

7. The visa applicant’s movement records show that she has travelled to Australia since 2010 as follows:

   ·From 8 April 2010 to 26 April 2010 (18 days);

   ·From 21 June 2010 to 9 July 2010 (18 days);

   ·From 10 September 2010 to 25 September 2010 (15 days);

   ·From 30 March 2011 to 18 April 2011 (20 days);

   ·From 26 January 2012 to 23 February 2012 (28 days);

   ·From 12 April 2012 to 25 April 2012 (13 days);

   ·From 5 June 2012 to 25 June 2012 (20 days);

   ·From 15 August 2012 to 29 August 2012 (14 days);

   ·From 22 February 2013 to 20 March 2013 (26 days);

   ·From 31 May 2013 to 24 June 2013 (25 days);

   ·From 1 March 2014 to 14 March 2014 (13 days);

   ·From 17 June 2014 to 6 July 2014 (19 days);

   ·From 29 September 2014 to 16 October 2014 (18 days); and

   ·From 28 October 2016 to 16 November 2016 (19 days).

8. The visa applicant’s husband, Harjanto, has primarily travelled with the visa applicant on her trips to Australia. He was last granted a Subclass 155 Five Year Return Resident visa on 19 August 2015 at the same time as the visa applicant. He did not enter Australia while he held that visa. That visa expired on 19 August 2016 and he has not returned to Australia since then. As he did not seek a review of the refusal of his Return Resident visa, he is not a party to the review in the current application.

9. When the visa applicant applied for a further Return Resident visa she provided various documents showing her savings in Australia and her relationship to her family living in Australia.

10. The visa applicant provided a statement where she made the following claims:

    ·She has two bank accounts in Australia;

    ·She has an independent daughter living in Australia who is married with two children; and

    ·She has an independent son who travels between Sydney and Jakarta and “who is a permanent resident”.[1]

    [1] It is noted that the visa applicant son, Brian Wilson Suryapranata was granted a Subclass 127 visa at the same time as the visa applicant and review applicant but has resided primarily out of Australia since then. He was refused a Subclass 155 Five Year Return Resident visa by the Department and that decision is subject to a separate review (case number 1910943).

11. The delegate who considered the application noted the following:

    ·As the visa applicant had not been present in Australia as a permanent resident for more than two years over the last five years she did not meet the criteria in cl.155.212(2);

    ·Since the grant of her permanent visa in 1998, the visa applicant had spent only 553 days in Australia and 7031 out of Australia;

    ·Although the visa applicant’s son and daughter had been granted permanent residence in Australia, they were adults and independent of the visa applicant;

    ·The savings the visa applicant has in Australia are of minimal value or benefit to Australia;

    ·There was an overall lack of any substantial ties that the visa applicant has with Australia and none which would indicate the applicant has substantial business, cultural, employment or personal ties with Australia which were of benefit to Australia;

    ·As there were no substantial ties to Australia which are of benefit to Australia the visa applicant did not meet the criteria in cl.155.212(3);

    ·The applicant was outside Australia at the time of the application she and so did not meet the criteria in cl.155.212(3A);

    ·The applicant was not a member of the family unit of a person who met the primary criteria and so did not meet the criteria in cl.155.212(4);

    ·There were no compelling or compassionate reasons for the visa applicant’s absence and so did not meet the criteria in cl.157.212(2);

    ·The visa applicant was not a member of the family unit of the person who met the primary criteria and so did not meet the criteria in cl.157.212(3); and

    ·The applicant had not demonstrated compelling and compassionate reasons for their continuous absence for a period of more than three months immediately before the making of the application and therefore did not meet the criteria in cl.157.213.

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

    Information to the Tribunal

13. The visa applicant provided various documents to the Tribunal including a statement in support of the application. In the statement, the visa applicant claimed as follows:

    ·The visa applicant was not aware of the issues that would be taken into account when assessing her application;

    ·The visa applicant and her husband were required to look after her husband’s mother who was born in 1919;

    ·The visa applicant and her husband have a long history of business investments in Australia;

    ·The visa applicant has savings in Australia;

    ·The visa applicant and her husband moved to Australia with their children and their children wish to remain living in Australia; and

    ·The visa applicant has her daughter and two grandchildren who continue to live in Australia.

14. The review applicant appeared before the Tribunal on 13 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. As it was a combined hearing with the application of the review applicant’s brother, the review applicant’s brother also gave evidence.

15. The review applicant said that she and her husband lived with their two children. She worked as a software engineer for a start-up company and her husband worked in the construction industry. She said that her father had applied at the same time as her mother and brother for the Return Resident visa but was refused the visa. She said they did not seek a review of that decision as it was too expensive and they decided to see what happened with her mother’s and brother’s applications before doing anything further for her father.

16. The review applicant said that her father has been running a cosmetic and food business for 35 years in Indonesia. She said that it was quite successful. She said that her sister works in the business and is a director of the company. She said that her sister was married with two children and was last in Australia in 2006. She has no continuing right to reside in Australia. She said that her brother is merely involved in marketing for her father’s business and he is still learning the business. She believed he had a girlfriend, but it was not serious. He continues to live with his parents.

17. The review applicant said that her father had a business in Australia which was exporting health goods to Indonesia. She said that the business closed in 2005, at least 15 years ago, as the supplier closed and they could not compete against American companies. She said that although there was no continuing business, her parents plan to retire in Australia.

18. The review applicant said that her parents owned real estate in Australia but they sold this a few years ago, possibly in 2015. She said the money from the sale of real estate was put into the HSBC and ING banks and this is what is left over in the balance of those accounts. She said that her parents do not use this money and only access the cash when they are in Australia.

19. The review applicant said that her brother had applied for jobs in Australia, but had not been successful because he does not have permanent residence. She said that her brother has a lot to offer to Australia and he would make a significant contribution to Australia due to his skills and experience.

20. The review applicant said that if they had known the requirements of the Return Resident visa they would have made sure that they had spent more time in Australia. She said that she felt guilty that it was her fault for not realising that she had to apply when they should have. She said the personal ties her mother and brother have with Australia is the fact that she lives here with her family.

21. The visa applicant gave evidence in support of the application. She confirmed that she and her husband owned real estate but sold the properties some years ago which was organised by the review applicant. She said that her husband last had business activities in Australia 10 or 15 years ago. She said that she had to remain in Indonesia to be able to look after her husband’s mother.

22. The review applicant’s brother gave evidence in support of the application. He said that he was working for his father’s business in e-commerce. He said that he had been working for his father for four or five years. He had applied for work in Australia, but as he did not hold permanent residence, he had not been offered any positions. He said that he had applied for three jobs but not been given any interviews. He said that he had not applied to study in Australia as it was too expensive as an overseas student.

23. When asked what substantial employment, business, cultural or personal ties he had with Australia, the applicant said that if he came to Australia he would be able to work and get a job. He said that he had obtained experience working overseas and would be able to transfer this to Australia. He said that his personal ties were his sister and his friends from school who continue to reside in Australia.

24. After the hearing the review applicant provided a statement stating that when her parents sold their real estate in Australia they gave some of the money to her to be used for her children’s education.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. 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.

27. In this case, the 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 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?

28. 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.

29. 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?

30. The visa applicant has never been in paid employment in Australia. She is not seeking any employment. Her husband had business interests in Australia at the same time as running his primary business interest in Indonesia. His Australian operations ceased at least 15 years ago and he has not maintained any continuing business interest in Australia. His business in Indonesia continues to operate.

31. The Tribunal is not satisfied that the applicant has any business or employment ties with Australia which are of benefit to Australia.

32. After being granted the Business Owner visa in 1998, the visa applicant has visited Australia on numerous occasions, but has remained residing primarily in Indonesia. Her visits to Australia have generally been limited to periods of not more than three weeks with only a few occasions being for more than that and none longer than a six weeks period. There is nothing to show that the visa applicant has been involved in Australian cultural activities or that she has any substantial cultural ties to Australia.

33. The visa applicant’s husband continues to live in Indonesia and operates his business there. He applied for a Return Resident visa at the same time as the visa applicant, however, he has not sought a review of that application due to the cost involved. It was claimed that if the visa applicant were granted a Return Resident visa her husband would then reconsider his position as to what visa he would seek to be able to live with her in Australia.

34. The visa applicant’s husband ended his business interests in Australia about 15 years ago. He and the visa applicant owned real estate in Australia, however, this was sold at least five years ago, with some of the proceeds being given to the review applicant to provide financial assistance for her children’s education. The bank accounts that are now held by the visa applicant in Australia comprise of part of the proceeds of sale of the real estate, however, these accounts are not used unless the visa applicant or her husband are visiting Australia.

35. The visa applicant’s other family in Indonesia include her son who lives with her and works in her husband’s business and her daughter who is married with two children and also works in her husband’s business. Her mother-in-law, who was born in 1919, is cared for by the visa applicant.

36. The visa applicant’s family in Australia is her daughter who is married with two children. The visa applicant and her husband provided financial assistance to the review applicant for her children’s education after the sale of their real estate. Other than this, it appears that the review applicant is financially independent of her parents. The review applicant has regularly travelled to Indonesia to spend time with her family there.

37. The Tribunal does not accept that the applicant has substantial personal ties with Australia. The visa applicant, and her husband, have established their lives in Indonesia, particularly with the visa applicant’s husband developing his business interest there and the visa applicant caring for her mother-in-law. They have spent little time in Australia. The relationship the visa applicant has with her daughter and her daughter’s family is no different to that she has with her daughter living in Indonesia and her family with neither daughter being dependent upon the visa applicant for any reason to any great extent. The visa applicant and her husband ceased any significant personal investment in Australia when they sold all their real estate in Australia.

38. The Tribunal is not satisfied that the personal ties the applicant does have with her daughter in Australia (the review applicant) are substantial or that they are of benefit to Australia. The review applicant is working as is her husband. There is nothing to indicate that they are dependent upon the visa applicant or that they would not be able to maintain their lifestyle and continue their relationship with the visa applicant if she continues to reside in Indonesia. This has been the situation between the visa applicant and the review applicant throughout their lives. There is no information which would indicate that any personal ties the visa applicant does have with Australia are of benefit to Australia.

39. Accordingly, 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.

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. There is no information before the Tribunal and no claim has been made that the visa applicant would meet any alternative criteria for the grant of a Subclass 155 visa or 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.