Elmasoglu (Migration)

This matter concerned an application for a Subclass 155 (Five Year Resident Return) visa. The applicant, born in the UK in 1967, first entered Australia in 1969 and departed in 1979. She subsequently made several short visits to Australia between 1980 and 2017, with her most recent entry being in February 2017, after which she remained in Australia. The application for the visa was lodged on 2 May 2017. The Tribunal was required to determine whether the applicant met the criteria set out in clause 155.212 of Schedule 2 to the Regulations.

The central legal issue was whether the applicant satisfied the requirements of clause 155.212, specifically subclause (3A), which requires an applicant present in Australia at the time of application to demonstrate substantial business, cultural, employment, or personal ties with Australia that are of benefit to Australia, in addition to a particular residency history. The applicant did not claim to meet any other subclauses of clause 155.212. The Tribunal considered the applicant's residency history, noting her initial entry in 1969 and departure in 1979, followed by sporadic visits.

The Tribunal reasoned that the applicant had been absent from Australia for approximately 38 years, with limited periods of lawful presence in the five years immediately preceding her visa application. Specifically, she had been in Australia for approximately 31 days in 2016 and 88 days in 2017. The Tribunal was not satisfied that the applicant had been lawfully present in Australia for a cumulative period of at least two years within the five years prior to her application, nor was it satisfied that she possessed substantial ties with Australia that were of benefit to the country.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Return (Residence) (Class BB) visa, finding that she did not meet the prescribed criteria for the grant of the visa.