Elmaghraby (Migration)

This matter concerned an application for a Subclass 155 (Five Year Resident Return) visa made by a person who was outside Australia. The applicant sought to satisfy the criteria under clause 155.212 of Schedule 2 to the Migration Regulations 1994. The Tribunal was required to determine whether the applicant met the requirements of this clause, specifically focusing on whether the applicant had substantial ties of benefit to Australia and whether compelling reasons existed for their absence from Australia.

The Tribunal considered whether the applicant met the alternative requirements of clause 155.212. It was established that the applicant had not been lawfully present in Australia for the requisite period before the application, nor did they meet the criteria for being a family member of a Subclass 155 visa holder. The primary focus then shifted to clause 155.212(3), which requires the applicant to have substantial business, cultural, employment, or personal ties with Australia that are of benefit to Australia, and to have not been absent for a continuous period of five years or more unless there were compelling reasons for the absence. The applicant claimed substantial personal ties through her Australian citizen daughter, who is her only family member and intends to reside in Australia.

The Tribunal found that while the applicant's daughter was an Australian citizen, the delegate had not been satisfied that the applicant had substantial ties of benefit to Australia, noting the daughter's residence in Egypt and limited prior visits to Australia. However, the Tribunal concluded that the applicant's stated reasons for absence, including divorce, the necessity to work in her home country, and to care for her mother, coupled with her close relationship with her Australian citizen daughter, constituted compelling reasons for her absence. Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met the criteria under clause 155.212.