Vardar (Migration)

[2020] AATA 5355

Vardar (Migration) [2020] AATA 5355 (8 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Seyhan Vardar

CASE NUMBER:  1836739

HOME AFFAIRS REFERENCE(S):          BCC2018/1007991

MEMBER:Michael Cooke

DATE:8 September 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(3A) of Schedule 2 to the Regulations.

Statement made on 08 September 2020 at 3:44pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – residency/citizenship requirement – former Australian permanent resident – substantial ties criterion – period of absence from Australia – ‘compelling reasons’ for the absence – fleeing from family violence and the threat of the family violence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65

Migration Regulations 1994 (Cth), Schedule 2, cls 155.211, 155.212

CASES
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 4 December 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 February 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.155.212.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.155.212 because the applicant did not demonstrate ‘compelling reasons’ for her prolonged absence from Australia.

4. The applicant was represented in relation to the review by her registered migration agent.

5. The applicant’s representative (Mr Joe Italiano) forwarded the following submission on her behalf explaining her situation as follows.

   Re: — Seyhan VARDAR (DOB 1/2/1963) Resident Return Visa (RRV) — Subclass 155 Visa Application

   I advise that I act for Seyhan Vardar (the 'applicant') who seeks a Five Year Resident Return (Subclass 155) visa under the `concessional' provisions which upon approval will result in the grant of a one year validity resident return visa pursuant to sub regulation 155.511(c)(i) of the Migration Regulations 1994 (Cth) ('the Regulations'); It is submitted that the visa applicant satisfies the requirements of subregulation 155.212(3A) of the Regulations that is, that the applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia and that there were compelling reasons for her absence from Australia from the date that the applicant last departed Australia as an Australian permanent resident to the date of this application.

   The applicant was born in Corum, Turkey on 1 February 1963. The applicant arrived as an immigrant with her parents on 22 April 1970. Her arents are Esref Innak (DOB 1 March 1939), now an 'Australian citizen, and Husniye Irmak (DOB 11 January 1948). The family initially settled at the Army Hostel in Broadmeadows. She attended North Fitzroy Primary School, and Brunswick High School, having only completed one year. She left high school at fourteen, to be a carer for her mother who has previously worked as a Cook but suffered severe burns to her face in an occupational accident involving a gas burner in a kitchen. At seventeen, the applicant married her Adnan Sozmen in Australia. After four months of marriage, and pregnant, she realised her spouse was having an affair. She separated after four months and sought divorce. Her daughter, Fifiz Havva Baylan was born of.26 November 1981 and is an Australian citizen. Following the breakdown of her marriage, the applicant and her child lived in her parents' residence in Brunswick, in an extended family unit. Her former spouse threatened her with violence after her child was born if she failed to return to the relationship. She refused to return to the relationship, but the threats became more serious. Her father was concerned for his daughter's and granddaughter's safety and sold the family house and the applicant and her dependent child returned to Turkey at the age of eighteen. The father did not seek the intervention of the police for an intervention order as he didn't understand the legal system and as the patriarch of the household, it was his obligation to protect his spouse, and his children as best he could. The father was stubborn, but determined to protect his daughter and granddaughter, even if this meant repatriation to Turkey for safety. She turned to Turkey in September 1982 with her 10-month child. The police were involved in the marital breakdown as they escorted the applicant to her former partner's house to reclaim her possessions.

   On 4 August 1984, she married Nazmi Vardar and had three children, namely, Esref Vardar (DOB 14 May 1985), Senem Vardar (now Yildiz), (DOB 23 October 1986), Mert Vardar (DOB 25 October 1993). The applicant longed to return to Australia but did not believe there was any visa suiting her particular set of circumstances. Australia's current immigration program is skills based and requires vocational level of English. This option was closed to the applicant in any event as she is unskilled having left school at fourteen, and her spouse is also unskilled, employed as a bus driver at the Airport.

   Since departing Australia in 1982 she has not returned. He daughter Filiz lived in Turkey with her. Filiz returned to Australia on 3 August 2017 to resettle with her and her two children, Ayhan Furkan (DOB 23 November 2001) and Elyasa Baylan (DOB 28 June 2007). The children are also Australian citizens by descent and attend Mount Ridley College Craigiebum and are happily settled in Australia. Filiz's spouse has remained in Turkey looking after the family business. Filiz came with the children to explore whether they should resume residence in Australia first. They have decided to reside in Australia permanently.

   In light of the above, it is clear that visa applicant satisfies the requirements of subregulation 155.212(3A) of the Regulations. The applicant has substantial personal ties with Australia which are of benefit to Australia, being her Australian citizen daughter, her two grandchildren and a close friend, Suad Cileceken, an Australian citizen whom the visa applicant has known since arriving on the same ship as Suad, and that there are compelling reasons which forced her to be absent from Australia from the date that the applicant last departed Australia as an Australian permanent resident to the date of the application.

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 applicant can s demonstrate ‘compelling and compassionate reasons’ for her prolonged absence from Australia.

   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(3A). The applicant does not claim to meet any of the other subclauses in cl.155.212. As the applicant was in Australia lawfully at the time of application, the applicant cannot meet cl.155.212(3).

    Does the applicant meet the substantial ties criterion?

13. Subclause 155.212(3A), as extracted in the attachment to this decision, requires that if the applicant is in 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. It also requires the applicant to have a particular residency history.

    Does the applicant have substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia?

14. The applicant arrived in Australia on November 2017 on a Subclass 600 visa. The applicant is presently living in Australia with her Australian citizen daughter and grandchildren. Accordingly, the Tribunal is satisfied that at the time of application the applicant had personal ties with Australia that are both substantial and of benefit to Australia.

    Does the applicant meet the prescribed residency requirements?

15. In addition to having substantial ties with Australia, cl.155.212(3A) requires that unless there are ‘compelling reasons’ for the absence, the applicant has not been absent from Australia for a continuous period of 5 years or more since the date the applicant’s most recent permanent visa was granted or the date he or she ceased to be a citizen.

16. 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 and reasons relating to cl.155.212(3A):

    ·the date of grant of the most recent permanent visa:

17. The applicant arrived as a 7 year old immigrant with her parents on 22 April 1970.

    ·whether the applicant was absent from Australia for a continuous period of 5 years or more since visa grant:

18. The applicant has been absent from Australia from 1982 until 2017 and thus for a continuous period of 5 years or more since visa grant.

    ·and if so, whether there are ‘compelling reasons’ for the absence.

19. The applicant through her representative has given the Tribunal a potted but thorough history of the applicant’s life from the time she felt obliged to quit Australia following claimed incidents of domestic or family violence involving her first husband.

20. The representative addressing the ‘compelling reasons’ for her long stay in Turkey as follows:

    It is submitted that the ground for overstaying the expiration of her last permanent visa were objectively reasonable, namely fleeing from family violence and the threat of the family violence, and hence, constituted compelling circumstances. As a dependent daughter in the Turkish culture, she was obligated to, and deferred to her father as the patriarchal figure to make decisions on her behalf and return to Turkey. It would have been inconceivable and unreasonable for her to defy her father absent any other extended supportive kinship networks, including child care, or ethno-specific services to negotiate the legal system and welfare services for a single parent and. a child of Turkish descent which were non-existent or rudimentary or culturally inaccessible at the time. •

    It would be fanciful under her circumstances- as a non-English speaking Turkish single parent with no skills and family ties- that she would return to Australia where she had no connections or support — should a visa have been available, appropriate to her circumstances, such as a subclass 155 visa — or remain with her spouse and dependent children in Turkey: Teoh v Minister for Immigration (1995) 183 CLR 273. In fact, the applicant remarried in Turkey and had three children, and even if she wanted to return, there were. no visa options open to her. Her father's decision to repatriate to Turkey in her interest and the child's best interest effectively prejudiced any option for return even as a parent as she fails the balance of family test, notwithstanding that her Australian resident citizen child and her two Australian grandchildren have resettled in Australia permanently.

    The applicant has expressed her long standing desire to be closer to her daughter who has recently resettled in Australia without familial support. She wants to provide practical and emotional support to her daughter and grandchildren who miss her.

    It is submitted that the applicant's circumstances are not only compelling but also exceptional in nature

21. The Tribunal has explored the applicant’s submission in both the historical and cultural sense. It accepts that within the submission she has outlined a ‘compelling reason’ for her absence under the rubric of Paduano. Her reasons are both ‘powerful’ and ‘forceful’ reasons for her lengthy absence.

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

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

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(3A) 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).

    …

    (3A)The applicant meets the requirements of this subclause if the applicant is in Australia, and the Minister is satisfied that the applicant:

    (a)has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia; and

    (b)has not been absent from Australia for a continuous period of 5 years or more since:

    (i)the date of grant of the applicant's most recent permanent visa, unless there are compelling reasons for the absence; or

    (ii)the date on which the applicant ceased to be a citizen, unless there are compelling reasons for the absence.