Ward (Migration)

[2019] AATA 5571

Ward (Migration) [2019] AATA 5571 (10 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Andrew Charles Ward

VISA APPLICANT:  Mrs Enid Ruth Cornish

CASE NUMBER:  1719878

HOME AFFAIRS REFERENCE(S):          Bcc2017/2517093

MEMBER:Michael Ison

DATE:10 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Return (Residence) (Class BB) visa for reconsideration, with the direction that the visa applicant meets the requirements of cl.155.212(3) of Schedule 2 to the Regulations for a Subclass 155 (Five Year Resident Return) visa.

Statement made on 10 December 2019 at 3:31pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – substantial cultural or personal ties of benefit to Australia – “substantial ties of benefit” – visa applicant’s contribution to review applicant’s heritage restoration projects, and  gardening projects – applicants’ families, properties, finances and residence in Australia and Canada – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 155.212(3)

CASE

Drake v MIEA (1979) 24 ALR 577

Jaravaza v MIAC [2013] FCCA 68

Lobo v MIMIA [2003] FCAFC 168

Re Drake No 2 and MIEA (No 2) (1979) 2 ALD 634

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 and Border Protection on 1 August 2017 to refuse to grant the visa applicant a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (the Act). As the visa applicant was outside Australia at the time of the delegate’s decision, the review applicant in this case is the visa applicant’s Australian citizen husband.

2. The visa applicant applied for the visa on 14 July 2017. 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). which provides if the application is made outside Australia the decision maker must be satisfied the visa applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia and the visa applicant has not been absent from Australia for a continuous period of 5 years or more immediately before the application for the visa subject to other requirements.

3. The review applicant provided the Tribunal with a copy of the primary decision with the application for review. The delegate refused to grant the visa because the delegate was not satisfied that the visa applicant met at least one of subclauses (2), (3), (3A) or (4) of cl.155.212. In relation to cl.155.212(3) the delegate found:

   The [visa] applicant provided a written statement declaring to have substantial ties to Australia on a personal and cultural level since she is married to an Australian citizen, who retains family and financial connections onshore and since they both own two places in Australia which they are renovating. Finally the [visa] applicant declared that even though she is retired “during the few months of the year” when she is in Australia she contributes to the economy with her “own funds from Canada”. Based on the declarations provided and assessment above, I consider the [visa] applicant to have established her residency outside of Australia and to only travel onshore during a few months of the year for social purposes and family visits. No evidence has been provided to demonstrate that the [visa] applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.[1]

   [1] Tribunal file, folios 2 to 5 at folio 4 (back).

4. The Tribunal received a 10 page written submission from the review applicant on 9 December 2019.

5. The Tribunal has considered all the information provided by or on behalf of the visa applicant and the review applicant, including the information in the Tribunal’s copy of the Department’s file and the written submission made by the review applicant on the visa applicant’s behalf.

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 meets cl.155.212(3) by having substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.

   Lawful presence/substantial ties

8. At the time of application, the visa applicant must meet one of the alternative requirements set out in cl.155.212. These requirements essentially relate to the visa 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.

9. In this case, the visa applicant is seeking to meet cl.155.212(3). The visa applicant does not claim to meet cl.155.212(4) and as the visa applicant was outside Australia at the time of application, the visa applicant cannot meet cl.155.212(3A).

   Was the visa applicant lawfully present in Australia?

10. In relation to cl.155.212(2) this criteria is met if the visa applicant was lawfully present in Australia for a total of not less than 2 years in the period of 5 years immediately before the visa application and, during that time:

    ·was an Australian citizen or the holder of a permanent visa or permanent entry permit; and

    ·was not the holder of certain specified visas.

11. The delegate found the visa applicant had not been lawfully present in Australia for a total of not less than 2 years in the period of 5 years immediately before her visa application on 14 July 2017:

    Departmental records show that, in the period of 5 years immediately before submitting this Visa application, the applicant has been present in Australia, as the holder of a Resident Return Visa, from 23 February 2013 to 16 June 2013; from 03 March 2014 to 27 May 2014, from 11 February 2015 (arriving with a subclass 601 electronic travel authority visa) to 11 May 2015 (departing with a Resident Return Visa subclass 155) and from 02 January 2016 to 01 May 2016, being onshore for less than 2 years in the period of 5 years immediately before submitting this visa application. (sic) [2]

    [2] Tribunal file, folios 2 to 5 at folio 4.

12. This information is consistent with the information provided to the Tribunal by the review applicant. Based on the information before the Tribunal, the Tribunal finds that the visa applicant was not lawfully present in Australia for 2 years in the period of 5 years immediately before submitting her visa application.  Accordingly, the visa applicant does not meet cl.155.212(2).

    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 visa 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 visa 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 does not own and is not involved in a business in Australia and does not claim to have substantial business ties with Australia that are of benefit to Australia.

16. The visa applicant is retired and therefore is not employed in Australia and does not claim to have substantial employment ties with Australia that are of benefit to Australia.

17. The visa applicant claims to have substantial cultural or personal ties with Australia that are of benefit to Australia.

18. There is no definition in the Act or Regulations as to what amounts to ‘substantial cultural or personal ties’ and there is no provision that sets out what amounts to something being ‘of benefit to Australia’.

19. The Department has provided some guidance in its Procedural Instructions previously known as the Department’s Procedures Advice Manual or PAM3:

    About the ‘substantial ties of benefit’ provision

    The intention of 155.212(3) and (3A) is to give officers discretion and flexibility to grant a visa with a 1 year travel facility to applicants who have substantial ties with Australia and are contributing to Australia’s well-being, but who have not spent sufficient time physically present in Australia in the past 5 years to satisfy the physical residence criterion.

    The substantial ties of benefit to Australia provision recognises that people’s lives change over time. In a mobile world, the provision recognises that people do spend time in other parts of the world for both personal and business reasons. Assessments should take into account the time spent in Australia compared with the time spent overseas since commencement of permanent residence. However, factors such as the experience, skills and international contacts and reputation that people are developing while overseas and will bring back when they resettle in Australia, and the benefit this will bring into the future are also relevant considerations.

    The benefits that accrue from Australia’s migration program vary depending on the visa stream. When assessing substantial ties of benefit to Australia for the purpose of an RRV application, it is important to consider some of these differences:

    …

    ·Family stream visas recognise the value of the family relationship of the visa holder. In the context of close family relationship visas such as the partner visa, the intention is to allow the family unit to live together. Therefore, a subsequent decision by an applicant to live overseas with their Australian citizen partner is the type of decision a reasonable person would generally make. Such a situation should be given considerable weight when deciding RRV applications, because their Australian citizen partner has an automatic right of entry to Australia.

    …

    In general, it becomes increasingly difficult to demonstrate substantial ties of benefit over extended periods of absence. This is in part because the longer the period of absence the more difficult it is to continue to maintain ties of sufficient import to be considered ‘substantial’.

    As none of the terms in this provision are defined in migration law, their ordinary meanings, and policy guidance as to their meanings, apply. Officers should consider:

    ·whether the applicant has business, cultural, employment or personal ties with Australia and, if so,

    ·are the ties substantial - that is, are the ties considerable and do they have real worth or value (this part of the criterion is about the quantity and value as they relate to the applicant and can be personal or financial) and

    ·are the ties of benefit to Australia, - this part of the criterion requires that there is a demonstrable benefit to Australia arising from the substantial tie(s).

    Officers should consider the whole of an applicant’s relevant ties with Australia and determine whether cumulatively an applicant’s substantial ties are of benefit to Australia.

20. When exercising a discretionary power the Tribunal should have regard to any relevant lawful policy.  In Re Drake No 2[3] the Tribunal was exercising a discretionary power (deportation). Justice Brennan, sitting as the President of that Tribunal, stated:

    In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy.  The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.[4] 

    [3] (1979) 2 ALD 634.

    [4] Re Drake and MIEA (No 2) (1979) 2 ALD 634 at 642.

21. While the Tribunal cannot deprive itself of the freedom to give policy no weight when exercising a discretionary power in a particular case, there are substantial reasons which favour cautious and sparing departure from Ministerial policy, particularly if Parliament had scrutinised and approved the policy.[5] As Brennan J stated in Re Drake No 2:

    Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.[6]

    [5] Re Drake and MIEA (No 2) (1979) 2 ALD 634 at 644.

    [6] (1979) 2 ALD 634 at 639. In Hneidi v MIAC [2010] FCAFC (Spender, Emmett and Jacobson JJ, 5 March 2010), the Court stated at [49] that these remarks were confined to a discussion of the place of Ministerial policy in the review of administrative action.

22. It is important to note that the Procedural Instructions of the Department are not Ministerial policy and have not been subject to the scrutiny of the Parliament.

23. The Tribunal must not determine an issue simply by resolving whether or not it conforms to policy. The Tribunal is not entitled “to abdicate its function of determining a correct or preferable decision in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be”.[7] The application of policy assumes that, in the absence of any reason to the contrary, its standards and values are an appropriate guide in the particular case.[8]  But where the policy is more narrow or restrictive than the legislation it will not be a lawful policy and reliance on it is likely to result in a jurisdictional error.[9] 

    [7] Drake v MIEA (1979) 24 ALR 577 per Bowen CJ and Deane J at 590.

    [8] Re Drake and MIEA (No 2) (1979) 2 ALD 634 at 642.

    [9] Lobo v MIMIA [2003] FCAFC 168 (French, Sackville and Hely JJ, 8 August 2003) at [63] - [64]; Jaravaza v MIAC [2013] FCCA 68 (Judge Nicholls, 19 April 2013).

24. The Tribunal should consider the totality of the circumstances in deciding whether to apply or depart from policy. The Tribunal is required to balance the demands of policy against the need for individual justice.[10] Indeed, as made clear by Brennan J in Re Drake (No.2), if the application of policy would work injustice in a particular case, that of itself would provide a cogent and sufficient reason to depart from a policy as 'consistency is not preferable to justice'.[11]

    [10] Skoljarev v Australian Fisheries Management Authority [1995] FCA 1732 (Davies J, 12 December 1995).

    [11] Re Drake and MIEA (No 2) (1979) 2 ALD 634 at 645.

25. The Procedural Instructions issued by the Department is a document that contains guidelines to the Department’s interpretation and application of the Act and Regulations as well as procedures to be followed by Departmental officers. Much of the Procedural Instructions can properly be categorised as an opinion as to the interpretation of the legislation, rather than as ‘policy’.

26. In the present case the Tribunal has had regard to the Procedural Instructions of the Department in the context of considering all of the circumstances of the visa applicant.

    Substantial cultural ties with Australia that are of benefit to Australia

27. The Department’s Procedural Instructions provide in relation to this consideration:

    An applicant involved in any of a range of intellectual, artistic, sporting or religious pursuits which are not strictly of a business or employment nature may be considered to have a cultural tie with Australia.

    A substantial cultural tie of benefit to Australia may exist if the applicant’s cultural pursuits are conducted at a professional level or with a degree of public recognition. Four examples of persons who may have substantial cultural ties are:

    ·A person who is accepted as a member of a cultural community within Australia who is actively involved in traditional activities.

    ·A person involved in the Arts at a professional level.

    ·Members of religious communities in Australia.

    ·Sports persons or professional support staff who are members of Australian sporting associations.

    Evidence to support a claim of cultural ties of benefit to Australia may include:

    ·publications

    ·contracts

    ·evidence of membership of cultural associations

    ·newspaper articles

    ·programs from concerts, etc.

    As a general observation it is likely that the reasons claimed as cultural ties would be consistent with the basis for the grant of their original permanent visa.

28. The Tribunal considers the examples and cited supporting evidence in the Procedural Instructions to be inclusive but not exhaustive of what may amount to and support a claim of cultural ties of benefit to Australia.

29. In the submission received by the Tribunal on 9 December 2019, the review applicant submitted:

    Enid is a very keen gardener. …

    At Bendigo, soon after she arrived in 2003,we set about restoring Andrew’s old green signal box which had been occupied by tenants for several years and was in poor condition needing major repairs including a new bath, hot water service, kitchen sink and trough. In this regard,  I remind the Tribunal – if  needed – that I was the Council’s Heritage Adviser in Bendigo for many years. Given my interest in railways (see below) I was well placed to encourage - and if necessary participate - in the conservation of obsolete infrastructure.

    She was also supportive of me when restoring the station building at Golden Square in Bendigo which I undertook in 2008-13. It retains its original first tenant who has since made it her permanent home.

    At Bendigo, Enid has established a garden much enjoyed by ourselves and our neighbours.

    …

    Named “Coath Cottage” after the original settlers - after whom the street is also named - this is what was left after the Bendigo fires of 2009.

    …

    Recognising its importance, Enid and I bought and restored the cottage. She re-planned and planted the garden which was totally destroyed by the fires, but has since flourished and is much admired by passers-by with one visitor asking if she could actually paint the cottage in its garden. They form an important element in an Historic Area made up of the nearby Gold Mines Hotel, the Victoria Hill Diggings (both on the Victorian Heritage Register) and the Cottage which links them together and forms part of the heritage walks available to the public on special days.

    Enid also assisted me whenever possible with projects that I had been handling prior to my retirement. They included a survey of the Bendigo Creek which involved walking its length and recording any features that might influence the Loddon Campaspe Water Authority’s plans for it.

    Earlier this year,  Enid and I worked with local Maldon resident Robyn Ballinger to document the cultural values of the Shelbourne railway precinct…work which has since been recognised by the Shire of Maldon and will hopefully lead to the re-erection of a platform nameboard, explanatory notes and a photograph of the place in its heyday. Robyn and I are also currently working on another small project in support of Maldon’s cultural heritage.

    On the 28^th. November, I presented my book entitled “A Story of Stations – Victoria’s railway stations in the nineteenth century” to the Australian Railway Historical Society (Victoria Branch). It has just been published by that Society, being released for the first time on the 28^th.. It will make a valuable contribution to our knowledge of the railway heritage of this State and form a useful guide to the future management of our historic railway station complexes.  Although it was prepared in Canada, and released on this date,  Enid’s help, participation and support in the production of this book has been invaluable.

    At Shoreham, and at Enid’s strongly put suggestion, the mature c.200 radiata pine trees planted by my father in the 1950s were taken down in 2006, much to the delight of the neighbours, all in accordance with Enid’s vision. The mature gums remained and we now have an extensive native garden of nearly four acres with wattles, banksia, bottle brushes, lamandras, blackwoods and poas, to name but a few of the native species, all much appreciated by us and our neighbours. In fact, our immediate neighbours were so enthusiastic about the removal of the pines that they actually helped pay for the removal of those pine trees which bordered their properties.

    But that is not all…The house at Shoreham, called “Blue Anchor”, was quite rundown and, with Enid’s support, we set about restoring it. We replaced the asbestos cement cladding with cedar weatherboards and granite facings, lined the walls internally with pine, built a new en suite bathroom, a new entrance lobby and paved entertainment area. Enid went to great lengths to choose the largest possible pavers for the patio which is used for family gatherings and is much admired. Shoreham would become our principal place of residence in Australia, as it still is. (sic) [12]

    [12] Tribunal file, folios 34 to 40 at folios 35 to 37.

1. It seems to the Tribunal that the review applicant has made a substantial cultural contribution to the social and special interest communities within which he lives and has an interest. The issue before the Tribunal however, is whether the visa applicant has substantial cultural ties to Australia that are of benefit to Australia.

2. In the Tribunal’s view, what emerges from the submissions to the Tribunal and also to the Department is that while the review applicant has specific knowledge and expertise – as an architect and railway historian – it is clear to the Tribunal that the contribution made to Australia’s cultural life, which in the Tribunal’s view has provided financial, social and cultural benefits to Australia, has often been a collaborative effort between the review applicant and the visa applicant. This is particularly the case with the restoration of Coath Cottage and renovation of Blue Anchor. This view is reinforced by the public recognition their joint work in restoring Coath Cottage has received. These particular contributions by the visa applicant satisfy the Tribunal that the visa applicant has substantial cultural ties to Australia that are of benefit to Australia.

3. It is also evident to the Tribunal that the visa applicant has played an important, but perhaps not as prominent role, supporting the review applicant with the other projects mentioned in the submission quoted above, in particular in the publication of the review applicant’s work on railway station architecture. The visa applicant outlined her contribution to this work in her written submission to the Department dated 10 July 2017,[13] which the Tribunal accepts. The review applicant also acknowledged the visa applicant’s contribution in the submission received by the Tribunal on 9 December 2019. In the Tribunal’s view these contributions by the visa applicant evidence her substantial cultural ties to Australia that are of benefit to Australia.

   Substantial personal ties with Australia that are of benefit to Australia

   [13] Department file, folio numbers not marked.

4. The Department’s Procedural Instructions provide in relation to this consideration:

   Substantial personal ties may be of benefit to Australia in the sense that the applicant is, or has been, a participating member of the Australian community and economy, and that their ties enrich the lives of individual Australian residents and citizens.

   Under policy, enabling a family unit to remain together can be considered of benefit to Australia particularly if there is evidence of an imminent intention for the family unit to domicile themselves in Australia.

   Seven examples of personal ties that may be considered substantial are situations where the applicant:

   ·has a history of long term residence in Australia prior to the last 5 years, particularly, if the applicant has spent their formative years in Australia or has spent a significant amount of time in Australia since first being granted a permanent visa. Under policy, the greater the proportion of their life in Australia since first being granted a permanent visa, the more weight this should be given

   ·has been living outside Australia with an Australian citizen partner or, in the case of a minor child, Australian citizen parent, who has previously lived in Australia. Such situations should be given considerable weight as their Australian citizen partner or parent has an automatic right of entry to Australia

   ·has been living in Australia for more than 12 months in the last 5 years, including as a temporary resident

   ·has one or more Australian citizen minor children living in Australia (including at boarding school) where no legal impediment to access exists

   ·has been living overseas with their family unit, including Australian citizen minor children, and the applicant provides evidence of imminent plans to return to Australia with their family to live (this tie should be given considerable weight)

   ·has personal assets in Australia, for example family home or single investment property - although ownership of a family home or investment property in Australia may help substantiate a personal tie, whether there was a benefit to Australia will depend on whether it is occupied, for example, by a close family member or actively being rented

   ·has close family members (that is, of a type for which family reunion might be available under the Family Stream of the Migration Program) who have substantial residence in Australia and are Australian permanent residents or Australian citizens.

   Another relevant consideration in assessing whether an applicant’s personal tie(s) is/are substantial is the person’s history and intention of residing in Australia. Do they:

   ·regard Australia as home and

   ·intend to reside permanently.

   It is recognised that a person may have substantial ties to more than one country. RRV criteria do not require an applicant to have greater ties to Australia but merely have substantial ties which are of benefit to Australia.

   If a claim of substantial personal ties is being made for a minor, evidence should be provided that parents and/or legal guardians support the application.

5. The Tribunal considers the considerations and examples in the Procedural Instructions to be inclusive but not exhaustive of what may amount to and support a claim of substantial personal ties of benefit to Australia.

6. In the submission received by the Tribunal on 9 December 2019, the review applicant set out the applicant’s personal ties to Canada and the review applicant’s personal ties to Australia, but did not directly address the visa applicant’s substantial personal ties to Australia.

7. The information before the Tribunal indicates that in the five years before the visa applicant’s application for the visa, being from 14 July 2012 to 14 July 2017, the visa applicant spent approximately 423 out of 1,816 days in Australia. Since applying for the visa, the information before the Tribunal indicates the visa applicant has spent approximately 241 out of 888 days in Australia, including at the time of this decision having been in Australia since 17 October 2019. This means since 14 July 2012 the applicant has averaged approximately 91 days in Australia each year, although this includes no visits in 2012 and only one in 2017.

8. In the submission received by the Tribunal on 9 December 2019, the review applicant submitted:

   … Enid spent 423 days in Australia over the 2012-2016 period. If we took the years 2015 to 2019, the number of days in Australia would be 642, just 88 days less than the minimum necessary to maintain Residency. This year, however, she will have spent 190 days in Australia and if she had maintained that rate for 5 years it would amount to 950 days, being 220 days more than is needed to maintain her residency status if it were in force.

   …

   Having met in 2003 and been married c.2010, Enid and I have been signficantly challenged by the need to maintain family relationships, maintain our presence in both countries, attain Residency in both countries, meet the various practical obligations of property ownership in both countries, not to mention family responsibilities, and to live our lives. We recognise where we have fallen short and believe we are now well placed to assume and maintain Residency in Australia and Canada in the event of it being reinstated for Enid.[14]

   [14] Tribunal file, folios 34 to 40 at folios 34 and 35.

9. The Tribunal calculates, based on the information that the review applicant provided checked against the visa applicant’s movement records that the visa applicant has spent 462 days in Australia between 2015 and to the date of this decision, not 642 days as claimed by the review applicant.

10. In the submission received by the Tribunal on 9 December 2019, the review applicant explained to the Tribunal that in 2012 he was injured when in Canada and the visa applicant had a significant wait for and eventually received a hip replacement in Canada, limiting their travel that year.

11. The submissions to the Tribunal and Department also set out the relevant family circumstances in Australia and Canada of the visa applicant and the review applicant, their property ownership in both countries, their travel history and their attachment to both Australia and Canada.

12. In her written statement to the Department dated 10 July 2017, the visa applicant submitted:

    As to my financial contributions to Australia, I am retired, but for the few months of the years when I’m in the country, I contribute to its economy with my own funds from Canada, and have done so since 2003 when Andrew and I first established our life together.

    I have also brought both my children to Australia for several visits and that too has contributed to the Australian economy. My son was so enamoured of the country that he has talked of living and working there. (sic) [15]

    [15] Department file, folio numbers not marked.

13. While the visa applicant’s financial contributions to Australia may be modest, they do evidence the applicant’s ongoing personal ties to Australia that the Tribunal accepts are of benefit to Australia. In her written submission to the Department dated 10 July 2017, the applicant described those ties in the following terms:

    On a personal level, I am married to Andrew Ward, an Australian citizen who retains strong family, as well as financial connections with his country, and though a now retired heritage architect, he still contributes substantially in this regard in a volunteer capacity to both Bendigo and Shoreham, the two communities we live in when in Australia, having met late in life, I too have family and financial ties to Canada, but due to our wish to travel in our retirement, we cannot always spend as much time in our respective countries as we would wish. When we are not travelling to other parts of the world, we have managed to maintain our family obligations in both Canada and Australia by being present in those countries.

    In order for our marriage to continue functioning well and in a normal manner, I need to be with my husband in Australia when he is there.[16]

    [16] Department file, folio numbers not marked.

14. The Tribunal is satisfied from these submissions that the visa applicant has substantial personal ties to Australia, as that term is used in cl.155.212(3), and that those ties are of benefit to Australia.

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

    Does the applicant meet the prescribed residency requirements?

16. In addition to having substantial ties to Australia, cl.155.212(3) requires that the visa 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).

17. The review applicant provided a summary of the time the visa applicant and review applicant have spent in Australia, Canada and other countries in the five years prior to the visa applicant’s visa application.[17]

    [17] Tribunal file, folios 34 to 40 at folio 38 (back).

18. In summary, the review applicant submitted the visa applicant spent the following time in Australia in the five years preceding her visa application:

    ·2012 – nil

    ·2013 – 112 days

    ·2014 – 85 days

    ·2015 – 107 days

    ·2016 – 119 days

    ·2017 – nil (to 1 September 2017)

19. The information provided is consistent with the copy of the visa applicant’s movement records obtained by the Tribunal, save that those records show the visa applicant spent 90 days in Australia in 2015, not 107 days. This discrepancy is not material for present purposes. Based on the information before the Tribunal, the Tribunal is satisfied the visa applicant was not continuously absent from Australia for 5 years or more immediately before the visa application.

20. The visa applicant’s movement records also indicate that when the visa applicant last left Australia before applying for the visa, which was on 1 May 2016, the visa applicant held a Subclass 155 visa and therefore departed Australia as a permanent resident.

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

    Conclusion

22. Given the findings above, the visa applicant meets cl.155.212(3). The appropriate course of action is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 155 visa.

    DECISION

23. The Tribunal remits the application for a Return (Residence) (Class BB) visa for reconsideration, with the direction that the visa applicant meets the requirements of cl.155.212(3) of Schedule 2 to the Regulations for a Subclass 155 (Five Year Resident Return) visa.

    Michael Ison
    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.