1903380 (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 155 (Five Year Resident Return) visa made by a Sri Lankan national. The applicant sought to challenge the refusal of her visa application, which had been lodged while she was offshore. The core of the dispute revolved around whether the applicant met the criteria for the visa, particularly concerning her ties to Australia and the reasons for her prolonged absence.

The Tribunal was required to determine if the applicant satisfied the requirements of clause 155.212 of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the applicant had substantial business, cultural, employment, or personal ties with Australia that were of benefit to Australia, and whether there were compelling reasons for her absence from Australia for a continuous period of five years or more. The applicant contended that her close relationship with her Australian citizen mother constituted a substantial personal tie, and that this relationship, along with her desire to care for her aging mother and foster a grandmother-grandchild relationship, provided compelling reasons for her absence.

In its reasoning, the Tribunal acknowledged the applicant's relationship with her Australian citizen mother but found that this relationship, while loving, did not constitute a substantial personal tie of benefit to Australia in the context of the visa criteria. The Tribunal noted that the applicant had not been lawfully present in Australia for the required two years in the five years preceding her application, thus failing to meet subclause 155.212(2). Furthermore, the applicant had been absent from Australia for more than five years. While the applicant argued for compelling reasons for her absence due to her mother's age and lack of other close relatives in Australia, the Tribunal concluded that these reasons were not sufficiently compelling to overcome the lack of substantial ties and the extended absence. The Tribunal also considered the applicant's past involvement with a Sinhalese cultural organisation, but found that this involvement had ceased and did not establish an ongoing substantial cultural tie.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Return (Residence) (Class BB) visa, finding that she did not meet the necessary criteria for the grant of the visa.