Sutanto (Migration)

[2020] AATA 4754

Sutanto (Migration) [2020] AATA 4754 (31 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Caterine Sutanto

VISA APPLICANT:  Mr Charles Sutanto

CASE NUMBER:  1909017

HOME AFFAIRS REFERENCE(S):          BCC2017/4669291

MEMBER:Hugh Sanderson

DATE:31 August 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 31 August 2020 at 11:20am

CATCHWORDS

MIGRATION – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – substantial ties to Australia of benefit to Australia – short visits to the applicant’s sister in Australia on Visitor visa – business commitment in Indonesia – no imminent intention of living permanently in Australia – plans to transfer business to Australia – decision under review affirmed      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 155.212, 157.212, 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 11 February 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 7 December 2017. 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 visa applicant did not meet cl.155.212(3) because the delegate was not satisfied the visa applicant had substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia. Further, the delegate was not satisfied the applicant met any of the alternative criteria.

   Background

4. The visa applicant is a citizen of Indonesia and is currently 38 years old. He was granted a Subclass 880 Skilled Migrant visa in 2004. He has subsequently been granted Subclass 155 Return Resident visas on 6 January 2010, 21 November 2014, 26 November 2015 and 8 December 2016.

5. Over the five years prior to the current application the visa applicant’s movement records show that he has been in Australia over the following periods:

   ·From 10 November 2014 to 15 November 2014 (1 day);

   ·From 22 September 2015 to 7 October 2015 (15 days);

   ·From 23 November 2016 to 28 November 2016 (5 days);

   ·From 21 January 2017 to 26 January 2017 (5 days); and

   ·From 24 November 2017 to 27 November 2017 (3 days).

6. Since applying for the Return Resident visa the visa applicant has travelled to Australia on two occasions in 2018 on Subclass 600 Visitor visas. These were for periods of 16 and 6 days. Each time the visa applicant has travelled to Australia since 2014 his Wife has travelled to Australia at the same time, travelling with the visa applicant or, on two occasions, travelling a few days before the visa applicant. She was granted a Subclass 600 Visitor visa on each of those occasions she travelled to Australia.

7. The applicant provided a statement to the Department where he stated as follows:

   I have explain that I applied my resident Return Visa in order to maintain contact with my only sister by visiting her at least once every year, and also as per requested by my parents to visit her. I also have ticket to visit my Sister in 8^th June 2018 in Melbourne and planning to stay for couple of weeks. Currently I have family business to run in Jakarta, Indonesia. The business is a wholesale supplier of fashion product (towel, ladies nightwear, sarong, praying mats). I am willing to bring my family business to Australia in future. (sic)

8. Other documents were provided in support of the application including passports, evidence of previous grants of visas and the visa applicant’s Victorian driver’s licence.

9. The delegate who consider the application noted the following:

   ·In the last five years, the visa applicant had only been present in Australia for 38 of 1085 days and accordingly did not meet the criteria in cl.155.212(2);

   ·Although the visa applicant’s sister lives in Australia, there is little other connection or ties that the visa applicant has with Australia;

   ·There is no evidence of any imminent intention by the visa applicant of returning to and living permanently in Australia;

   ·On this basis, the delegate was not satisfied the visa applicant had any substantial ties to Australia which are of any benefit to Australia and accordingly did not meet the criteria in cl.155.212(3);

   ·When the application was filed, the visa applicant was not in Australia and therefore did not meet the criteria in cl.155.212(3A);

   ·The visa applicant was not a member of the family unit of the person who had been granted a Subclass 155 Return Resident visa and therefore did not meet the criteria in cl.155.212(4);

   ·The via applicant had not provided any compelling reason for why he departed Australia and 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(2) and (3); and

   ·The visa applicant did not meet the criteria that he had not been absent from Australia for a continuous period of more than three months immediately before making the application and there were no compelling and compassionate reasons for that absence and accordingly did not meet the criteria in cl.157.213.

10. As the visa applicant did not meet any of the criteria set out above, the application was refused.

    Information to the Tribunal

11. The review applicant provided statements and documents from the visa applicant and his wife in support of the application.

12. In the visa applicant’s statement, the following was claimed:

    ·The visa applicant needed to apply for the visa to be able to visit his sister in Melbourne;

    ·The visa applicant, at the encouragement of his parents, needs to visit his sister once a year;

    ·The visa applicant has visited his sister in Melbourne by obtaining a Subclass 600 Visitor visa over the period where he had not been granted a Return Resident visa;

    ·The visa applicant would like to bring his textile business which he has established in Indonesia to Australia;

    ·The visa applicant had to return to Indonesia in 2010 to clarify and solve problems with his ex-wife, who he finally divorced on 18 January 2011;

    ·After divorcing his ex-wife, the visa applicant was upset and relied upon his family to calm him down and he then became involved with the family business; and

    ·The visa applicant then married his current wife on 24 January 2016 and they now have a child together.

13. In the statement from the visa applicant’s wife, it was claimed that they resided Indonesia due to the business that was established in 2012. It was stated that they now live with their daughter and the visa applicant’s wife needs to take care of her family business. It was claimed that they think that they would like to reside in Australia in the future and take their business there.

14. The review applicant appeared before the Tribunal on 26 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and his wife.

15. The visa applicant said that when he had travelled to Australia over the last ten years it had just been to visit his sister. He confirmed that he had always travelled with his wife. He said the business he had in Jakarta was involved in importing goods from China. It employed five people and was profitable. His wife had, since 2018, taken over her father’s business. He said his parents continue to live at Banjarmasin on Kalimantan and they run a shop there.

16. The visa applicant provided details of the breakdown of his first marriage in 2010. He said that when he and his wife came to Australia in 2009 after their marriage his wife only stayed for a short time before returning to help her parents in Indonesia. He stayed in Australia working on a production line and as a restaurant delivery driver. His wife then told him she wanted to end the marriage. He said he returned to Indonesia and got emotional help from his parents and then he set up the business he currently runs. He was living with one of his four brothers in Jakarta.

17. The visa applicant claimed he was thinking about setting up his business in Australia, but could not do so at this time as the business in Jakarta could not run without him. He said if he was able to open a business in Australia it would offer a greater variety of product.

18. The review applicant said that of her five brothers she is closest to the visa applicant. She said that he visits her every year and that in the future he might be able to live in Australia.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in this case is whether the applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.

21. 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.

22. 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?

23. 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.

24. 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?

25. The Tribunal is not satisfied that the visa applicant has any substantial business or employment ties with Australia. He established his own business in Indonesia in 2011/2012. That business employs five people. Although the visa applicant claimed the business had a turnover of AU$1 million, there is no substantial evidence to support this claim. The applicant has claimed that it is his wish to expand his business into Australia. He claims that he has not done so at this time as he is still required in his Jakarta office and has not been able to establish arrangements for the business to operate automatically.

26. The Tribunal does not accept that the visa applicant’s claim that he has considered opening a business in Australia indicates he has any business or employment ties with Australia. There is no evidence of any substantial action being taken by the applicant to establish a business in Australia and his claims that he intends to locate his business in Australia are purely speculative. There is no information which would indicate he has carried out any enquiries of opening an office in Australia or any assessment of the potential viability of opening an office in Australia. There is no information which would indicate that any potential Australian partner has offered the visa applicant employment in Australia. As the visa applicant has not been offered any employment in Australia, does not have any established business in Australia and any plans to open a business in Australia are remote and speculative, the Tribunal is not satisfied that the visa applicant has any substantial business or employment ties in Australia.

27. There is no information before the Tribunal which would indicate the visa applicant has any substantial cultural ties with Australia. The applicant studied in Australia and obtained an engineering degree. It does not appear that he has ever used that qualification to development career in that profession. His last work in Australia was as a delivery driver for a restaurant and working on a production line. There is no information that he has any continuing contact with any cultural organisation in Australia. The Tribunal is not satisfied that the applicant has any substantial cultural ties with Australia.

28. The visa applicant’s sister resides in Melbourne. She has a close relationship with the visa applicant and is closest to him than any other of her five brothers. This relationship is, in part, based on the fact that they were both students in Australia. The visa applicant sister is married with children. The visa applicant has generally travelled to Australia each year and spent about two weeks with his sister and her family. He has travelled with his wife when he has visited Australia since 2012. The visa applicant’s other family members all live in Indonesia. The visa applicant’s wife’s family all live in Indonesia. He has no other family or close relatives who reside in Australia.

29. The Tribunal is not satisfied that the fact that the visa applicant has a sister who resides in Australia means that the applicant has any substantial personal ties in Australia that are of benefit to Australia. The visa applicant and his sister are independent of each other and have their own families. The visa applicant has, since he was refused the Five Year Return Resident visa, been able to travel to Australia with his wife to spend time with his sister after being granted a Visitor visa in the same manner that he has spent time with his sister over the last eight years. There is nothing to indicate that any of the activities the visa applicant has engaged in since 2012 have been anything else other than being a tourist. There is nothing to indicate that the visa applicant would not be granted Visitor visas in the future to be able to visit his sister. She has also been able to travel to Indonesia to spend time with the visa applicant and the rest of her family.

30. Although the Tribunal does recognise the personal ties the applicant does have with his sister living in Melbourne, for the above reasons the Tribunal is not satisfied those ties can be considered substantial personal ties or that they are of benefit to Australia.

31. 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.

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

    Other criteria

33. As is set out in the Department’s decision, the applicant does not meet any of the other criteria for the grant of the visa. As he was not lawfully present in Australia for a period of, or periods that total, not less than two years in the period of five years immediately before the application for the visa he does not meet the criteria in cl.155.212(2). As he was not present in Australia at the time of the application he does not meet the criteria in cl.155.212(3A). As the applicant is not a member of a family unit of the person who has been granted a Return Resident visa he does not meet the criteria in cl.155.212(4).

34. In respect of the criteria for the Subclass 157 Three Month Return Resident visa, the Tribunal is not satisfied that there are any compelling or compassionate reasons for departing Australia. The applicant claimed that he returned to Indonesia in 2010 as he was going through divorce proceedings with his former wife. There is little information which would indicate that the applicant was compelled to remain in Indonesia while any divorce proceedings were taking place. Although he may have received emotional support from his family at the time, he was still able to establish a business which appears to have been successful and he then commenced a relationship with his current wife, who he had met while studying in Australia, in 2012.

35. The Tribunal is not satisfied that there were compelling or compassionate reasons for the applicant departing Australia. The Tribunal finds that the applicant, at that time of his life, decided to live and work in Indonesia for a variety of different reasons and chose to follow this path rather than return to reside in Australia. Rather than being compelled to depart Australia for any reason, the Tribunal finds the visa applicant simply decided to lead his life in Indonesia and not in Australia. Accordingly, the Tribunal finds the applicant does not meet the criteria in cl.157.212(2) and (3) and cl.157.213.

36. For the reasons above, the Tribunal finds the visa applicant does not meet the criteria for the grant of a Subclass 155 Five Year Return Resident visa or for the grant of a Subclass 157 Three Month Return Resident Visa.

    DECISION

37. 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.