Bentham (Migration)

This matter concerned an application for a Subclass 155 (Return (Residence)) visa, reviewed by the Administrative Appeals Tribunal. The applicant sought to satisfy the criteria under subclause 155.212(3A) of the Migration Regulations 1994, which requires an applicant present in Australia to demonstrate substantial ties to Australia beneficial to the country, and to have a particular residency history unless compelling reasons exist for any absence.

The primary legal issues before the Tribunal were whether the applicant met the "substantial ties" criterion and the "prescribed residency requirements" under subclause 155.212(3A). Specifically, the Tribunal had to determine if the applicant's ties to Australia were of benefit to the country and whether her prolonged absence from Australia since the grant of her most recent permanent visa was excused by compelling reasons.

The Tribunal reasoned that the applicant had not been absent from Australia for a continuous period of five years or more since the grant of her most recent permanent visa, unless there were compelling reasons for that absence. The applicant had departed Australia as a permanent visa holder in 1978 and did not return until 2000, a period of 22 years. The Tribunal considered the meaning of "compelling reasons" as interpreted by the Federal Court, which requires forceful, convincing reasons for the absence. Given the applicant's extended absence and subsequent limited, temporary visits, the Tribunal concluded that she had not demonstrated compelling reasons for her absence. Consequently, the Tribunal found that the applicant did not meet the criteria for the grant of a Subclass 155 visa.

The Tribunal affirmed the decision not to grant the applicant a Subclass 155 (Return (Residence)) visa.