Tiang (Migration)

[2020] AATA 4570

Tiang (Migration) [2020] AATA 4570 (13 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANTS:  Mrs Ching Boh Tiang
Mr Ching Lung Tiang

VISA APPLICANT:  Mrs Ching Siong Tiang

CASE NUMBER:  1907102

HOME AFFAIRS REFERENCE(S):          BCC2018/3187299

MEMBER:Hugh Sanderson

DATE:13 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 13 August 2020 at 9:25am

CATCHWORDS

MIGRATION – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – no permanent visa for over 10 years – member of the family unit – applicant assisting parents with business in Malaysia – siblings in Australia – most recent visits on Visitor visas – decision under review affirmed      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 Home Affairs on 25 January 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 23 August 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 visa applicant did not meet cl.155.212 because the visa applicant had not held a permanent visa for more than 10 years, last left Australia holding a Visitor visa, was not a member of the family unit of a person who met the criteria and she, therefore, did not meet the criteria for the grant of the visa.

   Background

4. The visa applicant is a citizen of Malaysia and is currently 47 years old. The review applicants are her brother and sister. They were granted Subclass 123 visas in 1992. Her brother and sister have been granted a number of Return Resident visas since first being given the right to reside permanently in Australia. The visa applicant was granted a Subclass 155 Return Resident visa on 27 November 1996. This expired on 27 November 2001. The visa applicant departed Australia on 9 December 1996 before returning on 17 April 1999. She departed Australia on 24 April 1999. The visa applicant’s Subclass 155 Return Resident visa expired on 27 November 2001.

5. After her Subclass 155 visa expired, the visa applicant has returned to Australia on four occasions on Visitor visas. She has been in Australia on these visas on the following occasions:

   ·From 20 November 2011 to 26 November 2011 (6 days);

   ·From 21 November 2015 to 1 December 2015 (10 days);

   ·From 10 February 2018 to 19 February 2018 (9 days); and

   ·From 11 October 2018 to 17 October 2018 (6 days).

6. The application for the Subclass 155 Return Resident visa was made on 23 August 2018 when the visa applicant was not in Australia. When the applicant applied for the visa she provided a statement where she made the following claims:

   ·She and her family had migrated to Australia in 1992;

   ·She returned to Malaysia to assist her parents running their petrol stations and vehicle repair/maintenance workshop;

   ·She did not intend to remain in Malaysia for so long, but the business was very demanding, and she always intended to come back to Australia and call Australia her home;

   ·Her brother and sister are successfully established in Perth in Australia;

   ·She has investments in Australia and hopes to develop a property portfolio in Australia; and

   ·Her management skills will allow her to succeed in Australia.

7. The delegate who considered the application noted the following issues:

   ·The applicant had not been present in Australia as the holder of a permanent visa for at least two years in the last five years and therefore did not meet the criteria in cl.155.212(2)

   ·The applicant last departed Australia holding a Visitor visa which is not a permanent resident visa and she last held a permanent resident visa over 10 years ago and therefore did not meet the criteria in cl.155.212(3);

   ·The applicant was outside Australia at the time of the application and therefore did not meet the criteria in cl.155.212(3A);

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

   ·The applicant had not been lawfully present in Australia as the holder of a permanent visa in the five years immediately before the application or was a member of the family unit of a person who had been granted a Subclass 157 visa and therefore did not meet the criteria in cl.157.212.

8. As the applicant failed to meet any of these criteria, the delegate refused the application.

9. The review applicants appeared before the Tribunal on 12 August 2020 to give evidence and present arguments. The Tribunal also received evidence from the visa applicant.

10. The Tribunal discussed with the review applicants and the visa applicant the reason why the Department found the visa applicant did not meet the criteria for the grant of the visa. It was acknowledged the visa applicant did not meet the criteria as the application had been made while she was overseas and the last time she had departed Australia she held a Visitor visa and had not last departed Australia as an Australian permanent resident.

11. The visa applicant made various arguments as to why she believed her circumstances were exceptional. This included that she could not access the internet when she still held a substantive visa and therefore did not make an application for a Return Resident visa when she may have been successful. She also complained that she had been poorly advised by various agents and that she now wants to live in Australia.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the visa applicant meets the criteria in cl.155.212(3).

14. As the visa applicant was outside Australia at the time of the application and is not a member of the family unit of the person who holds a Return Resident visa, she is required to meet the criteria in cl.155.212(3). This provides as follows:

    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.

15. Since her Return Resident visa expired on 27 November 2001, the visa applicant has been granted three Visitor visas in 2011, 2015 and 2018. She entered and departed Australia on those visas prior to the current application being made.

16. The visa applicant wished to put arguments that she had substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia. It is not required to consider any ties the applicant has unless she meets the criteria in cl.155.212(3)(a) and (b). As the applicant did not hold a permanent visa at the time of the application, has never been an Australian citizen, and did not last depart Australia as an Australian permanent resident she does not meet the criteria in cl.155.212(3)(a).

17. The applicant last held the right to reside permanently in Australia when her Subclass 155 Return Resident visa granted to her on 27 November 1996 expired on 27 November 2001. The current application was made on 23 August 2018, almost 17 years after the applicant was last an Australian permanent resident and does not meet the criteria in cl.155.212(3)(b). As the visa applicant does not meet the criteria in cl.155.212(3)(a) and (b), any ties she may have with Australia are not relevant as to whether she meets the criteria.

18. For the above reasons, the Tribunal finds the applicant does not meet the criteria in cl.155.212(3).

19. For the reasons above, the Tribunal finds the visa applicant does not meet the criteria for the grant of a Subclass 155 visa. No claims have been made that the applicant meets the criteria for the grant of a Subclass 157 Three Month Return Resident visa.

    DECISION

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

    Hugh Sanderson
    Member