1513419 (Migration)

The Administrative Appeals Tribunal considered an application for a Resident Return visa made by an applicant who stated he was born in Hong Kong SAR in August 1942 and arrived in Australia in 1981. The applicant claimed to have been granted a permanent visa in 1994 and to have been present in Australia for at least two years of the last five years, meeting the requirements for a Subclass 155 visa. However, departmental records indicated that the applicant arrived in Australia without an entry permit, had not held a substantive visa since his arrival, and was not an Australian citizen or permanent resident. The delegate had previously affirmed the decision not to grant the visa, finding the applicant did not meet the criteria in clauses 155.211 and 157.211 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Resident Return visa, specifically concerning his status as an Australian permanent resident or former permanent resident. The applicant's representative acknowledged that the applicant was not eligible for an Absorbed Person visa due to his unlawful entry in 1981. The Tribunal also considered whether to refer the matter to the Minister for intervention, despite the applicant's ineligibility for the visa.

The Tribunal reasoned that the applicant's arrival in Australia in 1981 without an entry permit meant he had not been granted an Absorbed Person visa on 1 September 1994, as suggested by the Department. Furthermore, departmental records consistently showed that the applicant was not, and had never been, an Australian citizen or permanent resident. Consequently, the applicant failed to satisfy the requirements of clauses 155.211 and 157.211, which necessitate being an Australian permanent resident or a former permanent resident (under specific conditions). While acknowledging the applicant's long presence in Australia and his desire to remain, the Tribunal found no basis to refer the matter for ministerial intervention, noting that the applicant could still make a direct request to the Minister.

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