Callan (Migration)

The Administrative Appeals Tribunal considered an application for a Resident Return (Class BB) visa, subclass 155, made by an Irish and Canadian dual-national. The applicant, who first arrived in Australia in 1974, had lived in Canada since 1986, returning to Australia for visits on temporary visas. His application for the visa was made from Canada.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the subclass 155 visa. Specifically, the Tribunal had to determine if the applicant satisfied the physical presence requirement under clause 155.212 of the Migration Regulations 1994, which requires the applicant to have been lawfully present in Australia for a total of at least two years within the five years immediately preceding the application, while holding a permanent visa or being an Australian citizen.

The Tribunal found that the applicant did not meet the physical presence criteria. It noted that in the five years prior to his application, the applicant had not been lawfully present in Australia for the requisite two-year period. Furthermore, he had not held a permanent visa or permanent entry permit during that time, nor had he ever been an Australian citizen. The applicant accepted that he did not meet these criteria.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Resident Return (Class BB) visa.