Havea (Migration)

This matter concerned an application for a Subclass 155 (Five Year Resident Return) visa by Mrs Havea. The dispute arose because Mrs Havea's application was initially refused, and the core issue was whether she met the alternative requirements for the visa as set out in clause 155.212 of Schedule 2 of the Migration Regulations 1994. The decision was made by the Administrative Appeals Tribunal.

The Tribunal was required to determine if Mrs Havea met the criteria under clause 155.212(4) of the Regulations. This clause allows for the grant of a visa if the applicant is a member of the family unit of a person who meets the requirements of clause 155.212(3A). Clause 155.212(3A) requires that the applicant have substantial personal, employment, or cultural ties with Australia that are of benefit to Australia, and compelling reasons for a lengthy absence from Australia.

The Tribunal reasoned that Mrs Havea was married to Dr Havea, with whom she had been in a marriage of over 38 years. It noted that the definition of "member of a family unit" in regulation 1.12 of the Regulations includes a spouse. Crucially, the Tribunal accepted evidence that a differently constituted Tribunal had previously found that Dr Havea met the criteria under clause 155.212(3A), having substantial ties to Australia and compelling reasons for his 19-year absence due to work, study, and family obligations overseas. The Tribunal was satisfied that Mrs Havea was a member of Dr Havea's family unit at the time of her visa application and that Dr Havea met the requirements of clause 155.212(3A) and had also lodged his own visa application.

Accordingly, the Tribunal found that Mrs Havea satisfied the requirements of clause 155.212 of Schedule 2 to the Regulations. The Tribunal remitted the application for reconsideration with a direction that the visa applicant meets the specified criteria.