Suryapranata (Migration)

[2020] AATA 5051

Suryapranata (Migration) [2020] AATA 5051 (14 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Eva Lenfina Suryapranata

VISA APPLICANT:  Mr Brian Wilson Suryapranata

CASE NUMBER:  1910943

HOME AFFAIRS REFERENCE(S):          BCC2018/5488522

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, cultural, employment or personal ties with Australia – only been in Australia for 230 days in the last five years before application – school and university education in Australia – one sister in Australia – work and family ties in Indonesia stronger – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 155.212, 157.213

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, cultural, employment or personal ties with Australia which are of benefit to Australia.

   Background

4. The visa applicant is a citizen of Indonesia and is currently 28 years old. He was granted a Subclass 127 Business Owner visa in 1998 as a member of the family unit of his parents. His sister, the review applicant, was also granted the same visa at the time.

5. The visa applicant was granted a Subclass 155 Five Year Return Resident visa on 21 November 2012. That visa expired on 21 November 2017. The current application was made on 6 December 2018. Since December 2013, the visa applicant has been present in Australia over the following periods:

   ·From 8 December 2013 to 7 January 2014 (30 days);

   ·From 1 March 2014 to 6 July 2014 (4 months and 5 days);

   ·From 19 September 2014 to 16 October 2014 (27 days);

   ·From 24 April 2015 to 13 May 2015 (19 days);

   ·From 28 September 2015 to 7 October 2015 (9 days);

   ·From 3 May 2016 to 9 May 2016 (3 days); and

   ·From 5 November 2016 to 10 November 2016 (5 days).

6. In his application, the visa applicant included the following statement:

   Subsequent graduation, Brian has been exploring and working in South East Asia and would like to return to Australia in the near future to find a job or business opportunity, as well as, to study postgraduate. Unfortunately he has passed his RRV expiry date 21 November 2017.

7. In answer to the request to provide details of any ties he has with Australia, the applicant provided details of his sister who is married with two children. There was no other information provided of any other ties the visa applicant had with Australia.

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

   ·The Department’s international movement records showed the visa applicant had only been in Australia for 230 days in the last five years immediately before the application and therefore did not meet the criteria in cl.155.212(2);

   ·Apart from his sister and her family, who are independent of the visa applicant, there was no indication of any ties in Australia and claims that he was planning to work or study in Australia were not supported by any credible evidence;

   ·There was insufficient evidence to find that the applicant had substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia and therefore did not meet the criteria in cl.155.212(3);

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

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

   ·The visa applicant was outside Australia at the time of the application and had not provided any compelling or compassionate reasons for departing Australia or his absence from Australia and therefore did not meet the criteria in cl.157.212 and cl.157.213; and

   ·The applicant was not a member of the family unit of the person who had been granted a Subclass 157 visa and therefore did not meet the criteria in cl.157.212(3).

9. For these reasons, the delegate found that the applicant did not meet the criteria for the grant of the visa and refused the application.

   Information to the Tribunal

10. The visa applicant provided various documents in support of his application. This included details of his relationship with his sister in Australia, his passport showing his international travel and details of his study and employment. His employment history indicates that he had been working as the general manager at PT. Ayu Agung managing Moko Moko from August 2014 to May 2021(sic) based in Jakarta.

11. 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 mother, the review applicant’s mother also gave evidence.

12. 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.

13. 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.

14. 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 couldn’t compete against American companies. She said that although there was no continuing business, her parents plan to retire in Australia.

15. 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.

16. 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.

17. 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.

18. The review applicant’s mother 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.

19. The visa applicant 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.

20. 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.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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.

23. 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?

24. 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.

25. 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?

26. There is little information that the visa applicant has any business or employment ties with Australia. The visa applicant’s father originally had a business interest in Australia, at the same time he was running his business in Indonesia. This business ceased operation at least 15 years ago and the visa applicant’s father has not had any other business operations or other interests in Australia. This was before the visa applicant finished high school.

27. At the time of the application the applicant was working for his father’s business in Indonesia. There is no information which would indicate that he had made any enquiries of obtaining employment in Australia or made any job applications at that time. Evidence has been provided that the visa applicant has, since the refusal of the visa by the Department, applied for three jobs in Australia however has not been given an interview as he did not have the right to reside permanently in Australia. He has not taken any further steps since then to seek any employment in Australia.

28. As the applicant is not involved in any business operations in Australia and has no offer of employment and was not seeking any employment in Australia at the time of the application the Tribunal is not satisfied that the applicant has any substantial business or employment ties with Australia that are of benefit to Australia.

29. The visa applicant attended school in Australia and completed a university degree in Australia. The Tribunal accepts that he would have developed friends as a schoolchild and attending university. Since he completed university he has resided in Indonesia and has been working for his father in his father’s business in Jakarta. Although the visa applicant has spent most of his formative years living in Australia, and developed an Australian accent, the Tribunal does not accept that he has substantial cultural ties with Australia. His first language remains Indonesian and since completing university he has lived primarily in Indonesia. He has been able to retain some contact with his friends and sister in Australia, however, those ties appear limited at best. No information was provided from any of the friends of the visa applicant to indicate any substantial cultural tie that he has with Australia. No information has been provided that any cultural ties the visa applicant may have with Australia are of benefit to Australia. For the above reasons, the Tribunal is not satisfied that the visa applicant has substantial cultural ties with Australia which are of benefit to Australia.

30. The visa applicant’s parents and one sister live in Indonesia. His parents applied for a Subclass 155 Return Resident visa at the same time as the visa applicant and were refused on the same grounds. His mother has sought a review of that decision while his father has not done so, due to the cost involved, and is awaiting to see the outcome of his wife’s application before deciding what to do next. His sister in Indonesia is married with two children.

31. The only relative of the visa applicant who resides in Australia is his sister (the review applicant). She is married with two children. Both the review applicant and her husband are in paid employment. There is nothing to indicate that the visa applicant and the review applicant have any financial dependence upon each other. For the limited periods the visa applicant has travelled to Australia since he completed university he has spent time visiting his sister and friends in Australia. Those periods have, however, been for relatively short periods of time. The review applicant has also travelled to Indonesia to spend time with her family there. There is no information which would indicate that the personal ties the applicant does have in Australia are of benefit to Australia.

32. The Tribunal is not satisfied that any personal ties the visa applicant has in Australia can be considered substantial personal ties which are of benefit to Australia. Although the visa applicant does have a good relationship with his sister in Australia, that sibling relationship is to a large extent independent with neither the visa applicant nor review applicant is reliant upon the other and each are living their own independent lives. Certainly, the ties that the visa applicant has with his family in Indonesia is closer than the relationship he has with his sister in Australia. The visa applicant has continued his life independent of his sister in Indonesia and the review applicant has continued her life in Australia independent of the visa applicant.

33. There is little information as to the personal ties the visa applicant developed with any friends he had at school and university. It appears that he has continued to visit them for limited period since he finished university, however, there appears to be no substantial tie with any of his friends living in Australia. He has a girlfriend who lives in Indonesia. As indicated above, there is no information which would indicate that any of his personal ties are of benefit to Australia.

34. 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.

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

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

37. 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

38. 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.