TEO CHAI (MIGRATION) - [2024] ARTA 126

TEO CHAI (MIGRATION) [2024] ARTA 126 (2 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Amjoe Teo Chai
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2318064

Tribunal:Senior Member M Sripathy
Place:Sydney
Date: 2 December 2024
Decision:The Tribunal affirms the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.

Statement made on 02 December 2024 at 5:14pm
CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – evidence of Australian citizenship or former Australian permanent residence – assault conviction set aside – long term residence and employment history – request for Ministerial intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 7, 10, 34, 65, 351
Migration Regulations 1994, Schedule 2, cls 155.211, 157.211
CASES
Mariappan v Minister for Immigration Citizenship and Multicultural Affairs [2024] FCA 1183
Rooney v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 590
Tjandra (aka Yek) v MIEA (1996) 67 FCR 577
Tjandra (aka Yek) v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 577
Yong v MIEA (1996) 67 FCR 566
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 October 2023 to refuse to grant the visa applicant a Return (Residence) (Class BB) Subclass 155 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 24 July 2023. 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 were 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 (Cth) (the Regulations). The application was also taken to be an application for a Resident Return (Class BB) (subclass 157) visa because it satisfied the validity requirements for that visa subclass. Relevantly to this case, they include cl 155.211 and cl.157.211.
The delegate refused to grant the visa on the basis that the applicant had not demonstrated evidence they were granted an Australian permanent visa, was an Australian citizen but has subsequently lost or renounced Australian citizen or evidence that they were a former Australian permanent resident, other than a former Australian permanent resident whose most recent permanent visa was cancelled. Therefore the delegate was not satisfied that the applicant met the requirements of clause 155.211 or the similarly worded criterion in clause 157.211.
The applicant appeared before the Tribunal on 2 December 2024 to give evidence and present arguments. The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a 72-year-old Singaporean national. In his application he claims he arrived in Australia by air on 30 August 1982 and has not departed the country since then. He provided documents relating to an assault conviction recorded against him relating to an alleged incident in December 2022, which he indicates was set aside and replaced with a conditional release order. The applicant claims to have been in Australia continuously since 1982.
In support of the application, he provided court documents relating to a criminal conviction relating to an incident in December 2022, tax documents, copies of his original passport on which he entered Australia and ID document.
On 26 July 2023 the applicant was requested to provide further information including a copy of previous visa grant letter, previous expired passports and entry stamps on his passport and proof of first arrival in Australia.
In a response to this request, the applicant confirmed he does not have a visa grant letter. He only has a stamp entry to Australia in 1982, evidence of which was provided with the application, on his only passport held, also provided with the application. He also provided a copy of his air ticket on which he arrived.
Absorbed Person Visa – Questionnaire
As a result of the information provided that indicated he was residing in Australia from 2 April 1984 until 1 September 1994, the applicant was sent a request on 9 October 2023 for information, specifically a Questionnaire to ascertain whether he was taken to have bee granted an Absorbed Person Visa (APV) by operation of law on 1 September 1994.
There is no indication on the Department file that the applicant responded to this request for information and returned the Questionnaire.
On 19 October 2023 the application was refused on the basis of no evidence the applicant was granted an Australian permanent visa, was an Australian citizen or a former Australian permanent resident. The delegate was not satisfied that the applicant met cl.155,211 or cl.157.211 and refused the application.
Evidence before the Tribunal
On 29 November 2024 the Tribunal received a submission and a tender bundle of supporting documents for the Tribunal’s consideration.
In his submission, the representative concedes, following discussion of relevant caselaw [1]relating to absorbed persons visas, the applicant did not cease to be an immigrant before 2 April 1984 as required by s34(2)(b) and therefore does not meet the definition of an absorbed person as defined in s34 of the Act.
[1] Rooney v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 590 Yong v MIEA (1996) 67 FCR 566; Tjandra (aka Yek) v MIEA (1996) 67 FCR 577, Tjandra (aka Yek) v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 577
As he did not hold an absorbed person visa he does not meet clause 155.211 in Schedule 2 of the Regulations as he is not a current or former permanent resident or Australian citizen and therefore the requirements of the Resident Return Visa (Class BB Subclass 155) are not met. The submission requests the Tribunal to refer the matter to the Minister under s351 of the Act on the following compassionate grounds:
- He has been in Australia since 30 August 1982 to date (over 42 years)
- has an extensive employment history in Australia where he has paid tax including the Medicare levy (departmental file page 51-8, 118-121)
- has accumulated some superannuation and savings (Applicants Evidence page 36-38).
·has economic ties through a car, bank account and rents his current place of residence (departmental file page 83-117, 143-147)
·he has contributed to the community through associations with the Malaysian/Singaporean Association in Australia as well as Lions Club (Departmental file page 126-141)
·he is now aged 72 years old. He is elderly and would face hardship in reestablishing himself in Singapore- a foreign country.
Tribunal hearing
The applicant confirmed to the Tribunal that this is the first application for a visa he has made since his arrival in Australia. He arrived on 30 August 21982 on a holiday permit valid for three months. He stayed following that. Prior to this arrival he had been to Australia before several times as a sailor on merchant ships for short periods.
The Tribunal discussed the issue of the criteria applicable to this visa class, being that he has or held a permanent visa or citizenship. His representative has submitted on his behalf that it is accepted he does not meet the Absorbed Persons visa. The Tribunal explained that this is consistent with its view on these provisions, as he was not present in Australia in the 5 years prior to April 1984. He indicated that he understood this.
Regarding the request for recommendation for Ministerial intervention, the Tribunal invited him to provide any further information. He said he has no one to go home to in Singapore. He would like to stay here. He had nothing further to say.
CONSIDERATION
In respect of Resident Return (Class BB) (subclass 155) visa, cl. 155.211 states:
The applicant:
(a) is an Australian permanent resident; or
(b) was an Australian citizen but has subsequently lost or renounced Australian citizenship;
or
(c) is a former Australian permanent resident, other than a former Australian permanent resident whose most recent permanent visa was cancelled.
An identical clause is contained in cl.157.211 for the Subclass 157 visa.
On the evidence before the Tribunal, the applicant is not, and has never held an Australian permanent visa or Australian citizenship. This is conceded by the applicant in the submission by his representative and his oral evidence to the Tribunal. There is no other information before the Tribunal contradicting this.
On the material before it, the Tribunal has considered whether the applicant may have held an Absorbed Persons Visa (APV) under s34 of the Migration Act. Relevantly for this purpose, this requires consideration of whether he had ‘ceased to be an immigrant’ prior to 2 April 1984. This in turn requires consideration of relevant provisions of the Migration Act in force at that time, being the Migration Act 1984, and specifically sections 7 and 10, which define a person to be a ‘prohibited immigrant once their entry permit is expired unless and until they obtained a further entry permit or a period of 5 years had elapsed.[2]
[2] Mariappan v Minister for Immigration Citizenship and Multicultural Affairs [2024] FCA 1183
As conceded by the applicant’s representative in their submissions, the applicant, having arrived in Australia on 30 August 1982 and not having been granted any further entry permits since then, is unable to meet the requirement of having been in Australia for 5 years as at 2 April 1984. Therefore he did not ‘cease to be an immigrant’ and cannot meet the requirements of s34(2)(b).
As the applicant is not taken to have held an APV or any other permanent visa, he is not, nor was ever, an Australian permanent resident or Australian citizen and therefore he does not meet cl.155.211.
For the same reasons he does not meet cl. 157.211.
Given the findings above, the Tribunal has no option but to affirm the decision under review.
Request for referral for Ministerial intervention
The applicant’s representative has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The Tribunal has considered the applicant’s circumstances and supporting documents provided by the representative and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and his evidence to the Tribunal at hearing. The material establishes that the applicant has been in Australia for a substantial period of 42 years and that he is now 72 years of age. There is some evidence to indicate he has been employed over the years. Having considered the guidelines on referral of matters to the Minister, and the limited material before the Tribunal, however, the Tribunal has decided not to refer the matter.
The Tribunal notes that the applicant can still make a request directly to the Minister.
The Tribunal will forward the submissions and supporting documentation that was submitted to the Tribunal to the Department. Any further supporting documents the applicant wishes to provide should be provided directly to the Department.
DECISION
The Tribunal affirms the decision not to grant the applicant a Return (Residence) (Class BB) visa.
Date of hearing: 2 December 2024
Representative for the Applicant: Ms Marta Mamarot