Widjaja (Migration)

Widjaja (Migration) [2020] AATA 4566 (12 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hardy Widjaja
CASE NUMBER:  1837086
HOME AFFAIRS REFERENCE(S):          BCC2017/3457846
MEMBER:Hugh Sanderson
DATE:12 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 12 August 2020 at 9:10am

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – substantial ties to Australia of benefit to Australia – residency requirements – multiple recent visits on Visitor visas – family members studying in Australia – business commitment in Indonesia – plans to establish a business in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 155.212

CASES
Lorenzo Paduano v MIMIA [2005] FCA 211
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 November 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).
The applicant applied for the visa on 21 September 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).
The delegate refused to grant the visa on the basis that the applicant did not meet cl.155.212 because the applicant did not meet the criteria for the grant of the visa and specifically was not satisfied the applicant had substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.
Background
The applicant is a citizen of Indonesia and is currently 51 years old. The applicant is married and has two children who are aged 14 and 12 years old. His children were granted Student visas in 2017 and his wife was granted a Student Guardian visa at that time. Since July 2017 the applicant’s wife and children have resided primarily in Australia on the temporary visas granted to them. He has no other family living in Australia.
The applicant first entered Australia in 1995 holding a Student visa. He was granted a Subclass 126 Skilled visa in 2000. He last departed Australia on that visa on 28 November 2002. He was granted a Subclass 155 Return Resident visa on 15 April 2005. That visa expired on 14 April 2010. He did not enter at any time using that visa. The applicant returned to Australia on 23 July 2015 holding a Subclass 600 Visitor visa, remaining for 10 days. Since then he has returned to Australia on six occasions holding a Subclass 600 Visitor visa, remaining in Australia for 12 days, 12 days, 28 days, 12 days, one month and 23 days, and three months. He last departed Australia on 4 March 2019.
When the applicant applied for the Return Resident visa his agent made submissions in support of the grant of the visa, including:
·After the applicant was granted the right to reside in Australia, he established a café business with partners, however, the business was sold at a loss;
·The applicant returned to Indonesia to gain experience in running a business which he intended to then use in Australia;
·The applicant started a family in Indonesia;
·The applicant is now ready to return to live in Australia with his family and intends to open a restaurant or an export business; and
·The applicant is now ready to settle in Australia and call Australia his home.
The applicant provided tax returns showing that for the year ending June 2002 he had a taxable income of $16,782. The tax return showed that for the partnership which ran the cafe in that year the applicant’s share was a loss of $8,821.
The Department requested the applicant provided further information as to the reason the departed Australia and any other reasons for the grant of the visa. The applicant provided a statement where he made the following claims:
·The business the applicant had in Australia was running very successfully and employing five people and the applicant dreams of opening other businesses in Sydney;
·Due to his parents’ health, he was required to return to Indonesia to care for them and had to abandon his plans to expand his business in Sydney;
·The applicant then met his wife and had a family who he could not abandon and they started a business which was successful;
·The applicant wishes to relocate to Brisbane and open a business there which he believes will be successful;
·The applicant has enrolled his children in an Australian school so that they can adapt to the lifestyle in Australia;
·The applicant’s wife was a licensed real estate agent in Indonesia and would be able to find work in Australia and had to give up her work in Indonesia to go to Australia; and
·As the applicant believes he would be able to establish a business in Australia, he needs to regain the right to reside permanently in Australia.
The delegate who considered the application noted the following issues:
·As the applicant had not been in Australia as the holder of the permanent resident visa at any time over the last five years prior to the application being made he did not meet the criteria in cl.155.212(2);
·As the applicant was in Australia at the time of the application he did not meet the criteria in cl.155.212(3);
·Since the time the applicant was granted the Subclass 126 Migrant visa he had spent (at the time the delegate made the decision) only 960 days in Australia and 5,406 days outside Australia;
·Although the applicant’s wife and children are currently in Australia on temporary visas, the applicant has had little involvement in Australian life since 2002;
·There was little information which would indicate the applicant had any substantial business, cultural, employment or personal ties with Australia or that they were of any benefit to Australia and therefore did not meet the criteria in cl.155.212(3A);
·As the applicant was not a member of the family unit of the person who had been granted a Subclass 155 visa, he did not meet the criteria in cl.155.212(4); and
·No claims had been made and no evidence provided that the applicant met the criteria for the grant of a Subclass 157 visa.
Accordingly, the delegate refused the application.
Information to the Tribunal
The applicant appeared before the Tribunal on 11 August 2020 by telephone to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who attend the hearing by telephone.
The applicant said that he was living with his parents and one sister in Jakarta. He said that he had another sister who was married and also lived in Jakarta. He said that his parents were in good health and had always been in good health. His father had retired from his business about 15 years ago. When asked further about his father’s health, the applicant said that he had a “minor heart attack” in 2002. He said that apart from his wife and children who were in Australia on temporary visas he had no other family in Australia.
The applicant said that he had a successful business in Australia but returned to Indonesia because of his father’s heart attack. He said that as he was his parents’ only son he felt he was obliged to look after his father. He said that he opened a restaurant in Indonesia which he operated for about seven years. The Tribunal indicated that it seemed implausible then that he was looking after his father while operating a business. He said that he had a nurse look after his father. The Tribunal noted that there was no documentation to indicate that his father had suffered a heart attack or had any other serious health concerns. The applicant claimed his father had suffered a serious heart attack.
The applicant said that the only reason he left Australia was because his father’s condition and that his wife wanted to be in Indonesia. He said that she was lonely when they were living in Australia and she had all her family in Indonesia. He said that because she was lonely in Australia he was not able to return to Australia.
The Tribunal noted that it was a requirement that the applicant have substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia. The applicant was invited to comment on what ties he had to Australia.
The applicant said that he was now planning to start a café in Melbourne. He said that he had a friend in Melbourne who had looked at places and believed he could open a café there. The Tribunal noted that he had previously stated that he had a successful business in Sydney which in fact did not appear to have been successful as it was sold for a loss. He claimed that he was intending to choose Brisbane as his future home, but was now claiming that he was planning to open a café in Melbourne. The business proposals of the applicant are speculative with no substance to indicate that he has any substantial business or employment ties with Australia.
In response to this, the applicant said that he did not really have ties to Australia. He said that he had plans in his mind to do business in Australia and wanted to return to live in Australia.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia and that there are compelling reasons for the absence of the applicant from Australia for a continuous period of 5 years or more since the date the applicant’s most recent permanent visa was granted.
Lawful presence/substantial ties
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.
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 at the time of application, the applicant cannot meet cl.155.212(3).
Was the applicant lawfully present in Australia?
Subclause 155.212(2) is met if the 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.
As the applicant had not been present in Australia for a total of not less than 2 years in the period of 5 years immediately before the visa application he does not meet cl.155.212(2).
Does the applicant meet the substantial ties criterion?
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?
The applicant’s wife and children are currently residing in Australia. The applicant’s children came to Australia on Student visas and his wife holds a Student Guardian visa. They do not have the right to reside permanently in Australia. The applicant has no other family members living in Australia and has no other personal ties to Australia.
The Tribunal is not satisfied that as the applicant has arranged for his children and wife to reside in Australia on temporary visas that this provides any substantial personal ties with Australia which are of benefit to Australia. As students in Australia, it is expected that his children would return to Indonesia once their studies have been completed. His wife would also be required to return with them. There is nothing to indicate that his children or wife have any other personal ties in Australia. His wife was previously a student in Australia before 2002 and, on the evidence of the applicant, she did not want to continue to live in Australia because all her family lived in Indonesia.
The Tribunal is not satisfied that the applicant has any personal ties with Australia which are of benefit to Australia.
The applicant claimed that he had a successful business in Australia before returning to Indonesia in 2002. The submissions made by his agent when applying for the visa indicates that the business ceased operating due to “various problems in association with his partners” and “the business was sold with losses”. The tax returns of the applicant for the year ending June 2002 supports this claim as the applicant had an taxable income of only $16,782 that year and his share in the business was a loss of $8,821. The applicant has no continuing interest in any operating business in Australia.
The plans suggested by the applicant that he intends to open a café or some other business in Australia are speculative and no substantive information has been provided which would indicate the applicant has the capital or capacity to open such a business. Apart from speaking to a friend in Melbourne there appears to have been nothing else done to establish any business or employment ties in Australia. It is difficult to see how a plan of opening of a café in Melbourne would be of benefit to Australia.
The Tribunal is not satisfied that speculative proposals of the applicant to open a business in Australia mean that he has substantial business or employment ties with Australia which are of benefit to Australia.
There is no information which would indicate the applicant has any cultural ties with Australia which are of benefit to Australia.
Accordingly, the Tribunal is not satisfied that at the time of application the applicant had substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia.
Does the applicant meet the prescribed residency requirements?
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.
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].
The applicant was granted a Subclass 155 Return resident visa on 15 April 2005 which expired on 14 April 2010. He did not enter Australia at any time while he held that visa. He next entered Australia on 23 July 2015 after being granted a Subclass 600 Visitor visa. Accordingly, the applicant was absent from Australia for a continuous period of more than 5 years since the grant of his most recent permanent visa. Accordingly, the applicant is required to have compelling reasons for his absence.
In the submissions originally made by the applicant’s agent it was claimed that the applicant returned to Indonesia after his business failed in Australia and the applicant went back to Indonesia to seek business experience that he believed he could then translate to Australia. No claim was made, at that time, that the applicant was compelled to return to Indonesia to care for his parents or for any other reason.
In the applicant’s subsequent statement, he claimed that his parents’ “health issues (heart) which required constant medical attention” compelled him to return to Indonesia. There is no evidence to support the claim that either of his parents were suffering any health issues, and in particular a heart attack, which required any assistance or support from the applicant. During the hearing, the applicant said that his parents had always been in good health. He then said that his father suffered a minor heart attack in 2002. He then change this to say that his father had a serious heart attack. He said that when he returned to Indonesia he was looking after his father, including having to carry his father. He said that he also opened a restaurant which he operated for seven years. He then said that he employed a nurse for his father.
There is no independent evidence to support the claims that the applicant’s father suffered a heart attack which required the physical presence of the applicant and compelled the applicant to be absent from Australia. His sisters were present in Indonesia and would have been available to provide assistance if required. The applicant’s father retired from work in 2005 which would indicate that he was able to return to work after suffering any medical condition in 2002.
The Tribunal is not satisfied that any medical condition suffered by either of the applicant’s parents are a compelling reason for the absence of the applicant from Australia.
The applicant claimed that after marrying his wife he could not abandon her to come to Australia. There is nothing to indicate that if the applicant did wish to return to Australia while he held a permanent resident visa that he could not have sponsored his wife for a Partner visa.
The applicant said that his wife did not want to live in Australia. He said that she was lonely in Australia and had all her family in Indonesia. This appears to be the applicant’s wife’s current situation with her family remaining in Indonesia while she is living with her children in Australia.
The Tribunal is not satisfied that any of the circumstances of the applicant and why he remained living in Indonesia provide a compelling reason for his absence from Australia. It appears that the applicant just decided to make his life in Indonesia. He decided to open a restaurant in Indonesia and engage in other business activities there. He lived in Indonesia with his wife and children. There is nothing to indicate that if he wanted to he could not have returned to Australia and sponsored his wife and children for a Partner visa. The Tribunal finds that the applicant with his wife simply decided to continue to live in Indonesia and they were not compelled to be absent from Australia for any reason.
Accordingly the Tribunal is not satisfied that at the time of application, the applicant meets the prescribed residency requirements.
Given the findings above, the applicant does not meet cl.155.212(3A).

There is nothing to indicate that the applicant would meet any of the other criteria in cl.155.212. The applicant was in Australia at the time of the application and he is not a member of the family unit of a person who meets the criteria for the grant of the visa. No claims have been made that the applicant would meet any of the alternate criteria.
Accordingly, the applicant does not meet cl.155.212.
No additional claims have been made that the applicant would meet the criteria for the grant of a Subclass 157 visa and for the reasons set out above, the Tribunal finds that the applicant would not meet the criteria for the grant of a Subclass 157 Three Months Return Resident visa.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.
Hugh Sanderson
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.

[2020] AATA 4566

12 August 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Natural Justice

Procedural Fairness