Wang (Migration)

[2017] AATA 315

Wang (Migration) [2017] AATA 315 (2 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jingsi Wang

CASE NUMBER:  1600476

DIBP REFERENCE(S):  BCC2009/330071

MEMBER:Adrian Ho

DATE:2 March 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 02 March 2017 at 3:56pm

CATCHWORDS

Migration – Skilled (Residence) (Class VB) visa – Subclass 886 – Not nominated by State or Territory government agency – Sponsor not usually resident in Australia – Physical residency and intention – Points test not met

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 1, subitem 1136, Schedule 2, cl 885.221, cl 886.222, cl 887.212

CASES
Mathai v Kwee  [2005] FCA 932

Scargill v MIMIA (2003) 129 FCR 259

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 on 14 January 2016 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 7 September 2009. At the time the visa application was lodged, Class VB contained three subclasses: 885, 886 and 887. The completed application form indicates that the relevant subclass in this case is Subclass 886, the criteria for which are set out in Part 886 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.886.222 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 1 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant was refused the 886 visa for failure to meet cl.886.222 which relevantly requires:

   (1) Either:

   (a) if the applicant was nominated by a State or Territory government agency in accordance with subitem 1136(3A) of Schedule 1 at the time of making the application — the requirements of subclause (2) are met; or

   (b) if the applicant was sponsored in accordance with subitem 1136(3B) of Schedule 1 at the time of making the application — the requirements of subclause (3) are met.

   (2) The Minister has accepted the nomination of the applicant by a State or Territory government agency mentioned in subitem 1136(3A) of Schedule 1.

   (3)      All of the following apply:

   (a)     the applicant, and all persons included in the application, are sponsored by a person who:

   (i)     has turned 18; and

   (ii)      is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (iii)     is usually resident in Australia; and

   (iv)     is related to the applicant, or the applicant’s spouse or de facto partner (if the applicant’s spouse or de facto partner is also an applicant for a Subclass 886 visa) as:

   (A)     a parent; or

   (B)     a child or a step-child; or

   (C)     a brother or sister, an adoptive brother or sister, or a step-brother or step-sister; or

   (D)     an aunt or uncle, an adoptive aunt or uncle, or a step-aunt or step-uncle; or

   (E)     a nephew or niece, an adoptive nephew or niece, or a step-nephew or step-niece

8. The applicant conceded at hearing, and the tribunal finds, that the applicant was not and is not nominated by a State or Territory government agency.

9. In the copy of the delegate’s decision the applicant provided to the tribunal, the delegate notes that the Australian citizen sponsor has been outside Australia since September 2012, a month after the sponsor was granted citizenship, and the delegate was not satisfied that the sponsor is usually resident in Australia (subclause (3)(a)(iii) above)  (f.2).

10. The applicant confirmed that this is so.

11. Documents submitted to the tribunal include a letter from the sponsor writing with an address in Dubai advising it was her intention to return to Australia after her husband finishes his work contract with his employer (f.24).  No timeframe for her return was indicated.

12. The applicant gave the following evidence at hearing:

    a.Her sponsor is her father’s sister; her aunt;

    b.Her sponsor will definitely return after her husband’s five year contract in Dubai concludes which an employer that is the same employer as his Australian employer;

    c.Her sponsor had arrived in 2004 and obtained citizenship and did have a house, but sold it, and has retained the proceeds in Australia;

    d.Her sponsor has resided in Australia longer than Dubai and that stay, on a work visa, should be regarded as ‘temporary’.

13. The tribunal suggested that the sponsor may have been resident in Australia and may again be resident in Australia, but it did not appear that she was usually resident in Australia at present, given she has had no physical presence in Australia since 2012.

14. It was suggested the sponsor has not even visited Australia since 2012, let alone resided in Australia.

15. The applicant was given a break in the hearing to consider any further submissions.

16. After the break, it was submitted that the applicant had heard that the sponsor paid Australian tax until 2014, and her husband’s contract would be concluding soon and her aunt would return to Australia.

17. The tribunal indicated that it would not delay its decision for an as-yet unknown arrival date of the sponsor back in Australia.  The tribunal noted that were she of a mind to demonstrate some period of residence in Australia, the sponsor might have returned to Australia when it pleased her to do so.  She has not, since 2012. 

18. The tribunal noted that the term ‘usually resident’ was not defined in the Act or Regulations.

19. As suggested, the tribunal finds the sponsor left Australia shortly after obtaining citizenship in 2012 and has not returned to Australia since.

20. The tribunal accepts the sponsor is in Dubai to accompany her husband who has, since 2012, been on a five year employment contract for an Australian employer which will be concluding soon, as the holder of a temporary work visa.  The tribunal accepts the sponsor has an intention to return to Australia.

21. The tribunal accepts that the couple sold their house in Australia, but still retain funds in Australia for their intended return.

22. However, as suggested, the sponsor has not visited Australia since 2012.  She has had no physical presence in Australia for now more than 4 years.

23. The applicant attempted to persuade the tribunal that the entire stay in Dubai was and would be merely temporary, as is reflected in the temporary work visa held by the couple and their intention to return to live in Australia.

24. The tribunal accepts that the couple intended and intend only to remain in Dubai for the length of the employment contract and fully intend to return to live in Australia.

25. However, as suggested, for those years, the sponsor has made no visit to Australia at all.  This indicates that she was not, during those years, usually resident in Australia; even if she fully intends to live in Australia into the future, or for the rest of her life. 

26. On the evidence, since she sold her house in Australia, the sponsor has had no physical or asset-based connexion with Australia since 2012, other than by retaining funds in Australia.

27. She is, as suggested, an Australian citizen resident abroad, as are many other Australians.

28. The tribunal finds she is and has been usually resident in Dubai, and will be so if and until she leaves Dubai.  If she returns to live in Australia and intends to live in Australia, she may become usually resident in Australia; but until that time, if and when it comes, as suggested, the tribunal finds that the sponsor is not usually resident in Australia.

29. A person may conceivably have two places of usual residence.  The tribunal considers that such a person will demonstrate that fact by intermittently residing in both places.  The sponsors own conduct, in not visiting Australia since she left in 2012, indicates that she maintains, for now, no usual residence in Australia.

30. Physical residency and intention are both essential considerations: Scargill v MIMIA[1].  The tribunal pointed out that there had been no physical visit by the sponsor to Australia since her departure in 2012.  The applicant sought to emphasise, and the tribunal accepts, that the sponsor fully intends to return to live in Australia, just as soon as the contract of employment in Dubai concludes.  In essence, she asserts, and the tribunal accepts, that the sponsor ‘still calls Australia home’: Mathai v Kwee[2]. 

    [1] (2003) 129 FCR 259.

    [2] [2005] FCA 932.

31. The five year contract of employment that has taken the sponsor out of Australia is not of short duration.  While it is temporary, in the sense that it will come to a conclusion at a known time, it has seen the sponsor entirely absent from Australia for now over 4 years, and likely, for around half a decade by the time she returns to live in Australia. 

32. Even though the sponsor has always, since at least 2012, considered Australia her home and fully intends to return to live in Australia, considers her stay in Dubai nothing more than temporary and finite, may have paid taxes in Australia while absent, and lived in Australia for years since 2004 before leaving, the tribunal finds, as suggested, that to be usually resident in Australia, at the same time, she must engage in some physical residence in Australia.

33. She has not, since 2012.

34. For these reasons, the tribunal finds the sponsor was usually resident in Australia in the years leading up to 2012, that she made a residence for herself in Dubai after leaving Australia, that she has not been usually resident in Australia since 2012 and is not now usually resident in Australia, but fully intends to be usually resident in Australia in the near future.

35. For these reasons, the requirements of subclauses, (3)(a)(iii), (1)(a) and (1)(b) above are not met, and neither option offered by cl.886.222 is satisfied.

    Subclasses 885 and 887

36. As suggested at hearing, the remaining subclasses of the visa have their own specific visa criteria with cl.885.221 requiring the applicant to obtain the pass mark in what is commonly known as the ‘points test’ and cl.887.212 requiring a lengthy period of living in specified regional areas.

37. The applicant did not wish to comment in reply to the suggestion that on the evidence before the tribunal she did not have the pass mark of 120 points for the Schedule 6B points test related to cl.885.221.  On the evidence, the tribunal finds she does not meet cl.885.221.

38. The applicant said she was now living in Western Australia and at one point had a student visa and had a bridging visa granted in relation to her Class VB visa application.

39. She had no meaningful response to the proposition that neither of those visas allowed her to meet cl.887.212.  On the evidence, the tribunal finds she does not meet cl. 887.212.

    Conclusion

40. It follows that the applicant does not satisfy the criteria for the grant of any subclass of visa in the class of visa sought.

    DECISION

41. The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

    Adrian Ho
    Member