Chai (Migration)

This matter concerned an application for a Subclass 155 (Five Year Resident Return) visa. The applicant sought review of a delegate's decision to refuse the visa. The Tribunal, constituted by Nicole Burns, considered whether the applicant met the criteria under clause 155.212 of Schedule 2 to the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 155.212, which outlines alternative pathways to obtaining the visa. Specifically, the Tribunal had to determine if the applicant met the criteria relating to lawful presence in Australia, substantial ties with Australia, or being a family member of a qualifying person. The applicant did not dispute the finding that they had not been lawfully present in Australia for the required two-year period within the preceding five years, nor did they establish they were a family member of a qualifying person. Therefore, the focus shifted to whether the applicant, who was outside Australia at the time of application, had substantial business, cultural, employment, or personal ties with Australia that were of benefit to Australia.

The Tribunal noted that the delegate had found the applicant had some personal ties, including family members who were long-term residents, but was not satisfied these ties were of substantial benefit to Australia. The delegate had placed weight on the applicant, their spouse, and children spending most of their time outside Australia, with only short-term visits. The Tribunal concluded that the applicant did not meet the requirements of subclause 155.212(2), (3A), or (4). However, the Tribunal found that the applicant's Australian-citizen children's lives were enriched by the applicant's presence, suggesting a personal tie of benefit to Australia.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clause 155.212 of Schedule 2 to the Regulations. This indicated that while the delegate's initial assessment was not entirely satisfied, the Tribunal found sufficient grounds to allow for further consideration of the visa application.