2008331 (Migration)

This matter concerned an application for a Return (Residence) (Class BB) visa, Subclass 155 (Five Year Resident Return) visa. The applicant sought to satisfy the criteria for the visa by demonstrating substantial ties with Australia. The decision under review was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 155.212 of the Migration Regulations 1994. Specifically, the Tribunal considered whether the applicant satisfied the criterion of having substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia, as required by subclause 155.212(3) for applicants outside Australia. The Tribunal also considered, but found not met, the alternative requirement of having been lawfully present in Australia for a total of not less than two years in the five years immediately preceding the application, as per subclause 155.212(2).

The Tribunal reasoned that the applicant did not meet the residency requirement under subclause 155.212(2), accepting evidence that the applicant had spent only 34 days in Australia in the five years prior to the application. Regarding the substantial ties criterion under subclause 155.212(3), the Tribunal noted the applicant's educational background in Australia and limited work experience there. However, it found that the applicant had spent significant periods outside Australia, including returning to Malaysia to work in a family business and subsequently achieving a promotion. The Tribunal was not satisfied that the applicant possessed substantial business, cultural, employment or personal ties with Australia that were of benefit to Australia, nor that compelling reasons existed for extended absences from Australia.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Return (Residence) (Class BB) visa, Subclass 155.