2215472 (Migration)

This matter concerned an application for a Partner (Provisional) visa (subclass 309) where the applicant was found to be permanently excluded from re-entering Australia due to a previous conviction and deportation. The applicant had declared a prior drug trafficking offence committed in Australia, leading to her deportation under section 55 of the Migration Act 1958 in September 1990. This prior event triggered Special Return Criterion 5001, which is a mandatory requirement for the grant of the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied Special Return Criterion 5001 of the Migration Regulations 1994. This criterion, as set out in Schedule 5, precludes individuals who have left Australia under a deportation order or whose visas have been cancelled on character grounds from re-entering unless specific conditions are met, such as the Minister personally granting a permanent visa after cancellation. The Tribunal was required to determine if the applicant's circumstances fell within the scope of this criterion and, if so, whether any provision existed for a waiver.

The Tribunal reasoned that the applicant's previous conviction for drug trafficking and subsequent deportation under section 55 of the Act meant that Special Return Criterion 5001 was unequivocally engaged. The Tribunal noted that the Migration Regulations provide no mechanism to waive this criterion, thereby rendering the applicant permanently ineligible for re-entry into Australia. While the Tribunal heard oral evidence from the applicant's sponsoring spouse and stepchildren regarding the disruption to their lives and the sponsor's health and care needs, these compassionate circumstances could not overcome the statutory bar imposed by Special Return Criterion 5001.

Consequently, the Tribunal affirmed the decision under review, concluding that the applicant did not satisfy the mandatory Special Return Criteria for the grant of the Partner (Provisional) visa.