Davis (Migration)

The Administrative Appeals Tribunal considered a decision to refuse a Subclass 155 (Five Year Resident Return) visa to a visa applicant who was outside Australia at the time of her application. The applicant had last held a permanent visa in 1992 and had since made frequent visits to Australia on temporary visas.

The primary legal issue before the Tribunal was whether the visa applicant met the criteria for a Subclass 155 visa, specifically under clause 155.212 of the Migration Regulations 1994. This involved determining if she was lawfully present in Australia for a specified period, or if she possessed substantial ties with Australia that were of benefit to the country, and if she met certain residency or absence requirements.

The Tribunal found that the applicant did not meet the requirement of being lawfully present in Australia for at least two years in the five years immediately preceding her application, as she had not held a permanent visa or been an Australian citizen during that period. However, the Tribunal was satisfied that she had substantial personal ties with Australia, including an Australian citizen daughter and an Australian citizen spouse, and had visited Australia regularly for approximately 25 years. Despite these ties, the Tribunal affirmed the decision not to grant the visa, but referred the case to the Minister for consideration under section 351 of the Migration Act 1958, recommending that the Minister exercise discretionary powers.