TALUJA (Migration)

[2020] AATA 3397

TALUJA (Migration) [2020] AATA 3397 (20 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jiten Taluja

VISA APPLICANT:  Mr Satish Kumar Taluja

CASE NUMBER:  1722712

HOME AFFAIRS REFERENCE(S):          R17/1106

MEMBER:David Crawshay

DATE:20 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 20 August 2020 at 10:47am

CATCHWORDS

MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – not a permanent resident in 10 years before application made – not in Australia for at least two years in five years before application made – former permanent resident who returned to home country for personal reasons – unable to return to Australia to renew permanent visa – subsequent visitor visa, application for contributory parent visa and grant of bridging visa – substantial ties – exemption if compelling reasons for absence from Australia – residency requirement separate from absence provision, and must be satisfied alongside it – another visa application in progress – not appropriate to refer for ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351

Migration Regulations 1994 (Cth), Schedule 2, cl 155.212

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 Immigration and Border Protection on 4 September 2017 to refuse to grant the visa applicant a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 27 June 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). Relevantly to this case, they include cl.155.212.

3. The delegate refused to grant the visa on the basis that the visa applicant did not meet cll.155.212(2), (3), (3A) and (4). The delegate found the visa applicant did not meet:

   ·clause155.212(2) because he was not in Australia for not less than two years in the last five years immediately before the time of application;

   ·clause155.212(3)(a) because he did not hold a permanent visa at the time of application and last departed Australia on a temporary visa and not as a permanent resident or Australian citizen;

   ·clause 155.212(3)(b) because he was not an Australian citizen or Australian permanent resident less than 10 years before the time of application;

   ·clause 155.212(3A) because he was not in Australia at the time of application; and

   ·clause 155.212(4) because he was not the partner or dependent family member of a person who holds a resident return visa.

4. The delegate also found the visa applicant did not meet:

   ·clause 157.212(2) because he was not lawfully present in Australia as the holder of a permanent visa or permanent entry permit or as an Australian citizen for a period or periods that total not less than one day but less than two years in the last five years immediately before the time of application; and

   ·clause 157.212(3) because he was not a member of the family unit of a person who holds a current subclass 157 visa or meets the relevant requirements and has lodged a separate application for a class BB visa.

5. The review applicant appeared before the Tribunal on 5 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal was conducted as a combined hearing, with the other visa applicant being the review applicant’s sister Ms Rachna Taluja. The decision regarding her application is the subject of another written decision.

6. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams (MS Teams) video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by MS Teams, having regard to the nature of this matter and the individual circumstances of the parties. 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 MS Teams or similar method. The Tribunal is satisfied that the review applicant was given a fair opportunity to give evidence and present arguments.

7. The review applicant was represented in relation to the review by his registered migration agent.

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

   EVIDENCE AT HEARING

9. The review applicant related to the Tribunal his family’s immigration history, which began in the 1980s when his mother, father (the visa applicant), sister and he were in Australia as permanent residents. During that time, the visa applicant purchased a house in Lakemba, and the review applicant and his sister attended the local school. In 1986 the family left Australia to return to India, the reason being that the visa applicant needed to settle some properties with his brother. While in India, the review applicant claims that these property issues and an illness suffered by his mother kept the visa applicant from returning to Australia to renew the permanent visa. The visa applicant applied for two extensions to the date he could renew and these were granted. A third extension, however, was refused.

10. The review applicant and his sister spent the rest of their childhoods in India. The review applicant pursued education in the USA and in 2009 applied for a visa to come to Australia, which he states was granted within three months. During the time he has lived in Australia, the review applicant has sponsored members of his family to come out on visitor visas – his mother in 2012 to help out with the birth of his daughter; the visa applicant in 2013 to help with the purchase of a new house; and all three in 2015.

11. In 2016, the review applicant travelled to India with his family to see his sister, mother and the visa applicant. He claims to have been shocked when he discovered that they were all suffering from Chikungunya – a viral disease. He claims to have contracted the disease along with his family. He claims that, only a short time after travelling home to Australia, his mother died – an experience that haunts him. He claims that at that point he resolved to bring his sister and the visa applicant to Australia or join them in India to look after them.

12. In 2017, his sister and the visa applicant came to Australia on visitor visas and applied for a Contributory Aged Parent visa when they came onshore, which allowed them to attain a bridging visa. They came to live with the review applicant and his family at an address in Tarneit. At around that time, the review applicant claims to have bought another property close to his address for the visa applicant and his sister to live. However, more recently he has been looking for a bigger house on a bigger block of land where they could all live.

13. The review applicant claims to be suffering from anxiety and other conditions for which he has sought psychological help. He said that he would be forced to uproot his family and move to India in the event that his sister and the visa applicant were to return there. He said that his kids are settled here and they do not want to move.

14. During the course of the hearing, the Tribunal made clear to the review applicant that the subclauses under cl.155.212 are largely cumulative in that they mostly contain two or three separate requirements that must all be satisfied. The review applicant asked the Tribunal to look at the visa “from a different angle”. He told the Tribunal that he thought he had presented compelling reasons for the visa applicant and his sister being away from Australia. He expressed frustration that if the matter was “done and dusted” on the clauses at the time the delegate made their decision, what was the point of having an appeal to the Tribunal. The Tribunal distils from his submission that he wants to have the matter looked at from the angle of compelling reasons (and substantial ties) and not from a strict reading of the clauses. Unfortunately for the review applicant, such a distinction is not made by the Regulations. While compelling reasons and substantial ties may be looked at under subcl.155.212(3), other requirements relating to citizenship or residency must also be satisfied.

15. The visa applicant largely confirmed the timeline provided by the review applicant. He said that he wants to live with his children and would die if separated from them. He said that he has been living here for the last two years and does not want to return to India.

16. The review applicant’s sister simply told the Tribunal that she wants to live in Australia together with her family.

17. The review applicant’s representative invited the Tribunal to consider whether the visa applicant could satisfy the requirements for a subclass 157 visa, and the Tribunal took him to the alternative requirements under cl.157.212 and explained why neither of them was satisfied. He told the Tribunal that there was a “grey area” in subcll.(3)(a) and (3)(b). The Tribunal replied that the visa applicant did not meet certain residency or citizenship requirements as was a requirement for both and in that sense there was no grey area in terms of those subclauses. As will be seen below, the representative mounted a different argument in relation to subcl.(3)(b) in his post-hearing submissions.

18. The representative asked the Tribunal to have regard to the strong ties that the visa applicant and the review applicant’s sister have with Australia. It also asked the Tribunal to consider the repercussions of the review applicant having to go to India to look after his family, including disposing of his assets which are substantial. The Tribunal has had regard to this evidence which it accepts may be compelling and may suggest substantial ties. However, the Tribunal considers that this evidence cannot displace the clear terms of the legislation.

19. The representative also submitted that the Department has, in a lot of instances, used their discretion to give one-year visas instead of the five-year visas to cases where a visa applicant has satisfied all other requirements except for the requirement to be present in Australia for not less than two years in the five-year period. The Tribunal found this submission curious and told the representative that it considered that it did not have that discretion but invited him to make submissions on this if he wished to. He said that he would and agreed to a period of seven days for this purpose.

20. On 6 August 2020, the Tribunal received an email from the representative seeking an extension of 28 days instead of the agreed seven days in which to give further evidence. The Tribunal responded by letter of 7 August 2020 granting an extra seven days on top of the agreed seven days but not otherwise granting the 28 days sought by the representative. The Tribunal said that it considered the original period of seven days to be sufficient based on the fact that the submissions sought by it were mainly in relation to the representative’s argument regarding the ability of the Department to use their discretion to grant visas where not all the criteria are met. The Tribunal said that, while other evidence can be submitted, it had already received extensive submissions from the review applicant and the representative both before and at hearing.

21. On 19 August 2020, the Tribunal received further evidence and submissions from the review applicant through his representative. The evidence comprised copies of the photograph page of a number of the review applicant’s family who were Australian citizens, including the review applicant himself, as well as documents such as medical certificates issued in respect of the review applicant’s mother from the 1980s and a letter from the review applicant’s father to the then (presumably NSW) Department of Social Security dated 17 December 1990 giving bank account details for the payment of his sickness benefits.

22. In his submissions, the review applicant’s representative stated that he wished to retract his earlier submission in relation to the ability of the Tribunal (and the Department) to issue one-year visas on a discretionary basis where applicants had met some criteria but not others. He nonetheless submitted that the visa applicant satisfied subcl.(3)(b) and therefore subcl.(1). This submission is dealt with below. It suffices here to say that the review applicant’s representative argued that the compelling reasons exception applies to the residency/citizenship requirement as well as to the requirement that the visa applicant not be absent for a period or periods of more than five years since their last departure as a permanent resident or Australian citizen. For the reasons given below, the Tribunal does not accept this submission.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in this case is whether the visa applicant meets one of the alternative requirements under cl.155.212.

    Lawful presence/substantial ties

24. At the time of application, the visa applicant must meet one of the alternative requirements set out in cl.155.212. These requirements essentially relate to the visa 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.

25. In this case, the visa applicant is seeking to meet cll.155.212(2), (3) or (4). As the visa applicant was outside Australia at the time of application, the visa applicant cannot meet cl.155.212(3A).

    Was the visa applicant lawfully present in Australia?

26. Subclause 155.212(2) is met if the visa applicant was lawfully present in Australia for a total of not less than 2 years in the period of 5 years immediately before the visa application and, during that time:

    ·was an Australian citizen or the holder of a permanent visa or permanent entry permit; and

    ·was not the holder of certain specified visas.

27. The visa applicant indicated in his visa application form dated 27 May 2017 that he had not been in Australia for more than two years in the five-year period immediately before the date of visa application as an Australian citizen or Australian permanent resident. At hearing, the review applicant confirmed this.

28. The Tribunal notes that it is a requirement of cl.155.212(2) for the visa applicant to have been in Australia for that period of time as a citizen or permanent resident.

29. Because the visa applicant does not satisfy this requirement, he does not meet cl.155.212(2).

    Does the visa applicant meet the substantial ties criterion?

30. Subclause (3), as extracted in the attachment to this decision, requires that if the visa applicant is outside Australia at the time of application, then 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.

31. Additionally, the visa applicant must have a particular residency/citizenship status or history, and must not have been absent from Australia for a prescribed period, unless there are compelling reasons for the absence.

32. In this regard, cl.155.212(3) requires that the visa 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): subcl.(3)(a); 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): subcl.(3)(b).

33. The visa applicant stated in his visa application form that he has never been an Australian citizen, that he held a visitor visa at the time he last departed Australia (prior to the date of application) and that he was not a permanent visa-holder at the time of application. The Tribunal asked the review applicant to confirm that these details were correct, and he did.

34. The Tribunal notes that it is a requirement of cl.155.212(3)(a) for the visa applicant to hold a permanent visa at the time of application, or to have been a permanent resident or Australian citizen at the time the visa applicant last departed Australia.

35. Because the visa applicant does not satisfy any of these requirements, he does not meet cl.155.212(3)(a).

36. The Tribunal now turns to cl.155.212(3)(b).

37. The visa applicant indicated in his visa application form that he ceased being a permanent resident in 1989. The Tribunal asked the review applicant whether this was true. He replied that it was.

38. The Tribunal notes the submission of the review applicant’s representative that the compelling reasons exemption should apply to the residency/citizenship requirement as well as to the requirement that the visa applicant not be absent from Australia for certain periods before the date of application. The representative argued this in spite of a contrary view being expressed in the Department’s Policy,[1] pointing out that while policy provides guidance it is in no way binding. If this submission is to be accepted, then it would mean that a visa applicant could prove compelling circumstances to excuse the fact of the visa applicant having not been a permanent resident in the 10 years leading up to the date of application.

    [1] Policy – Migration Regulations – Schedules > Sch2 RRV – Resident return visas > Applications made outside Australia.

39. For the following reasons, the Tribunal firmly believes this is not the intent of the legislation.

40. Firstly, the words of the subclause themselves talk about “compelling reasons for the absence” [emphasis added] and not in relation to any other aspect of subcl.(3)(b), including the residency/citizenship requirement.

41. Secondly, the comma in the subclause between the words “application” and “and”, so that the subclause reads as follows:

    …was an Australian citizen, or an Australian permanent resident, less than 10 years before the application, and has not been absent from Australia … unless there are compelling reasons for the absence.

    strongly suggests that the residency/citizenship requirement is separate from, and must be satisfied alongside, the requirement for the visa applicant to not be absent from Australia for certain periods before the date of application unless there are compelling reasons for the absence.

42. Thirdly, the explanatory statement to the Migration Amendment Regulations 1999 (No. 6) 1999 states as follows in relation to the subclause:

    The provision requires that people who have been former permanent residents and former Australian citizens within the last 10 years must have substantial business, cultural, employment or personal ties which are of benefit to Australia. In addition, if they have been absent from Australia for a cumulative period of 5 years or more since last departure as a permanent resident or Australian citizen, they must show compelling reasons for that absence. [emphasis added][2]

    [2] Explanatory Statement, Migration Amendment Regulation 1999 (No. 6) 1999, Item 4304.

43. This further reinforces that the intent of the subclause is for the residency/citizenship requirement to operate separately from the requirement for the visa applicant to not be absent from Australia for certain periods before the date of application, and that only the latter requirement is subject to the compelling reasons exception.

1. The text and structure of subcl.(3)(b), although cast differently from subcl.(3)(a), is clear on its face. It does not permit the Tribunal to consider compelling reasons in respect of the visa applicant having not been a permanent resident within the 10 years before the date of application.

2. Having found as such, the Tribunal therefore notes that it is a requirement of cl.155.212(3)(b) for the visa applicant to have held a permanent visa in the 10 years immediately before the time of application.

3. Because the visa applicant does not satisfy this requirement, he does not meet cl.155.212(3)(b). The Tribunal does not need to consider whether there were compelling reasons for the visa applicant being absent of periods of more than five years from when he last departed Australia as a permanent resident, although it acknowledges the evidence provided by the review applicant in support of the claim of compelling reasons – including a letter from the visa applicant’s representative dated 27 May 2017, a psychologist’s report dated 12 February 2018, further submissions from the representative dated 1 August 2020, and 19 August 2020, and an undated letter from the review applicant.

4. Accordingly, the Tribunal is not satisfied that at the time of application, the visa applicant meets the prescribed residency requirements under cll.155.212(3)(a) or 155.212(3)(b). It is unnecessary for the Tribunal to consider whether the visa applicant had substantial business, cultural, employment or personal ties with Australia of benefit to Australia as this requirement is in addition to the requirements under subcll. (3)(a) and (3)(b), although again it acknowledges the above evidence as well as a family relationship tree that support the visa applicant’s claim to have substantial personal ties through family living in Australia.

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

   Does the visa applicant meet the family member criterion?

6. Subclause 155.212(4) is met if, at the time of application, the visa applicant is a member of the family unit of a person who:

   ·has been granted a Subclass 155 visa and that visa is still in effect; or

   ·meets the requirements of 155.212(2), (3) or (3A) (relating to presence in Australia, substantial ties, and absence from Australia) and has lodged a separate application for a Class BB visa. For visa applications made before
   1 July 2012, the person may lodge a separate or combined application.

7. There is no evidence in front of the Tribunal to show that the visa applicant meets either of the abovementioned criteria.

8. Accordingly, the visa applicant does not meet cl.155.212(4).

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

   Does the visa applicant meet any of the requirements under cl.157.212?

10. The Tribunal has considered whether the visa applicant meets the criteria for a Subclass 157 visa.

11. The Tribunal notes that the visa applicant did not have permanent residency or citizenship during the five-year period immediately before the date of visa application. It is a requirement of cl.157.212(2) for the visa applicant to have been in Australia for that period as a permanent resident or Australian citizen. There is no need to consider whether the visa applicant has compelling and compassionate reasons for his last departure from Australia.

12. Because the visa applicant does not satisfy this requirement, he does not meet cl.157.212(2).

13. Lastly, the Tribunal has seen no evidence to show that the visa applicant meets either of the family member criteria under cl.157.212(3).

14. Accordingly, the visa applicant does not meet cl.157.212 and does not meet the criteria for the grant of a Subclass 157 visa.

    MINISTERIAL INTERVENTION

15. The Tribunal told the review applicant at hearing that he was entitled to make a request of ministerial intervention. However, it also foreshadowed that such a request might be found to be inappropriate according to the guidelines on ministerial intervention because the visa applicant was the subject of another visa application that was currently on-foot. The review applicant made no such request at hearing.

16. In his submissions of 19 August 2020, the review applicant’s representative stated as follows:

    In the alternative, if the Member does not agree that the applicants satisfy 155.212(3)(b), we kindly request that the decision record notes the Member’s opinion regarding the extent of the applicants (sic) ties to Australia and the compelling reasons for absence from Australia.

    In light of the nature of the applicants’ ties to Australia and compelling reasons for absence, we also encourage the Member to consider referring the matter to the Minister under section 351 for the Minister to consider intervening to grant the applicants a visa in the public interest.

17. Based on evidence submitted by the parties and the review applicant’s representative and on the parties’ testimony at hearing, the Tribunal is willing to accept that the visa applicant have substantial personal ties in the form of his extensive familial network in Australia. It also accepts that certain circumstances operated to keep the visa applicant from returning to Australia and renewing his permanent residency, although it does not venture an opinion on whether these circumstances constitute compelling reasons for being absent from Australia. As above, it is unnecessary to do so in light of other requirements not being met.

18. As to the representative’s request to refer the matter for ministerial intervention under s.351 of the Act, the Tribunal has considered the details of the visa applicant’s matter and the ministerial guidelines relating to the discretionary power set out in the Department’s policy. In so considering, it is of the opinion that the minister will find such a request to be inappropriate because the visa applicant has another visa application that is on-foot. In this regard, the Tribunal refers to the minister’s guidelines, which relevantly state as follows:

    Cases which do not meet these guidelines for referral, and with the types of circumstances described below, are inappropriate for me to consider. The Department will finalise these cases without referral to me and advise the person or their authorised representative in writing:

    ·     …

    ·     the person has an ongoing application for a substantive visa (either onshore or offshore) with my Department …[3]

    [3] Department of Home Affairs, Minister’s guidelines on ministerial powers (s.351, s.417 and s.501J).

19. The Tribunal has therefore decided not to refer the matter to the minister under s.351 of the Act, although it notes that the visa applicant can still make a request directly to the Minister.

    DECISION

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

    David Crawshay
    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.