TANG (Migration)

[2020] AATA 3393

TANG (Migration) [2020] AATA 3393 (18 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Rongzhen TANG

VISA APPLICANT:  Mrs Lifang Gong

CASE NUMBER:  1816198

HOME AFFAIRS REFERENCE(S):          BCC2018/2225558 OSF2018/009343

MEMBER:Michael Cooke

DATE:18 August 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Return (Residence) (Class BB) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 155 (Five Year Resident Return) visa:

·cl.155.211 of Schedule 2 to the Regulations; and

·cl.155.212(3) of Schedule 2 to the Regulations.

Statement made on 18 August 2020 at 2:01pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – departed as permanent resident, continuously absent for five years and outside Australia at time of application – substantial ties with Australia and compelling reasons for absence – review applicant daughter a permanent resident and granddaughter a citizen – visa applicant’s husband’s death and review applicant’s return to home country to care for visa applicant and manage estate – breakdown of review applicant’s marriage – visa applicant’s health – granddaughter’s schooling – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 155.211, 155.212

CASE
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 31 May 2018 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 23 May 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). Relevantly to this case, they include cl.155.211 and 115.212(3).

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.155.212(3) because the delegate found that the applicant did not have significant personal ties of benefit to Australia, nor  ‘compelling reasons’ to remain absent since the grant of her most recent visa in September 2015.

4. The review applicant appeared before the Tribunal on 31 July 2020 (by telephone) to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. Following the grant of additional time to furnish the Tribunal with explanatory information - a submission and evidence pursuant to cl.155.212(3) has been provided by the parties. The visa applicant with the assistance of her daughter (the review applicant) has fully clarified their personal situation for the edification of the Tribunal.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the visa applicant has ‘compelling reasons’ for remaining7 absent from Australia since the grant of her most recent visa in September 2015 and, therefore, can meet cl.155.212(3).

   Does the applicant meet the residency/citizenship requirement?

8. Clause 155.211 requires that at the time of application the applicant either:

   ·is an Australian permanent resident; or

   ·was an Australian citizen but has subsequently lost or renounced Australian citizenship; or

   ·is a former Australian permanent resident, other than a former Australian permanent resident whose most recent permanent visa was cancelled.

9. The Tribunal finds that the applicant is a former Australian permanent resident, other than a former Australian permanent resident whose most recent permanent visa was cancelled.

10. Accordingly, the applicant meets cl.155.211.

    Lawful presence/substantial ties

11. 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.

12. 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?

13. 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.

14. 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?

15. The visa applicant has an Australian permanent resident daughter and an Australian citizen granddaughter.

16. Accordingly, the Tribunal is satisfied that at the time of application the applicant had substantial personal ties with Australia that are of benefit to Australia.

    Does the applicant meet the prescribed residency requirements?

17. 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).

18. 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]

    Findings relating to whether at time of application:

    ·the applicant held a permanent visa or last departed as a citizen/permanent resident, and if so:

    othe period of continued absence from Australia immediately before the visa application, and whether this was more than 5 years

19. The Tribunal finds that the visa applicant last departed Australia as a permanent resident and has had a period of continued absence from Australia immediately before the visa application which was more than 5 years.

    oand if so, whether there are ‘compelling reasons’ for the absence

20. The Tribunal has had the benefit of copious additional information concerning the personal travails of the visa applicant and her daughter (the review applicant). Suffice to say an initial decision to return to China temporarily with her late husband evolved into a complicated situation following his death from cancer. This also embroiled the review applicant as the only child. Feeling obliged to undertake the care of her mother for cultural and family reasons, the review applicant returned to China to care for her mother and to manage the lengthy resolution of her father’s estate. This tardiness in returning caused the demise of her own marriage and she was left as a single parent. Subsequently attempts to work and study in Australia have met with a lack of success and her daughter has had insufficient English fluency to readapt to the schooling system in her native land. The visa applicant has had a series of subsequent medical issues (verified in subsequent additional documentation). One, in particular, was at the precise moment when she had been granted a Subclass 157 visa (for compassionate reasons) and was due to fly out of China and return to Australia. Age related additional illnesses have also impacted on her ability to return to Australia in the immediate sense, but her wish is to return with her daughter and granddaughter to Australia.

21. The Tribunal finds the visa applicant’s personal story and explanation for her absence to be ‘compelling’ in the sense of a ‘forceful’ and ‘convincing’ reason for her absence for so long from Australia where she had been living up until 2011 in an extended family.

22. Accordingly, the Tribunal is satisfied that at the time of application, the applicant meets the prescribed residency requirements.

    Conclusion about cl.155.212(3)

23. Given the findings above, the applicant meets cl.155.212(3).

24. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 155 visa.

    DECISION

25. The Tribunal remits the application for a Return (Residence) (Class BB) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 155 (Five Year Resident Return) visa:

    ·cl.155.211 of Schedule 2 to the Regulations; and

    ·cl.155.212(3) of Schedule 2 to the Regulations.

    Michael Cooke
    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.