HE (Migration)

This matter concerned an application for a Subclass 155 (Five Year Resident Return) visa by Ms. Lee, a national of China, who was married to Mr. He, an Australian citizen. Ms. Lee had previously held a Subclass 155 visa which had ceased. The dispute before the Tribunal was whether Ms. Lee met the criteria for the grant of a new Subclass 155 visa, specifically the requirement under clause 155.212 that she have substantial ties with Australia that are of benefit to Australia, given she was applying from outside Australia.

The primary legal issue before the Tribunal was to determine if Ms. Lee possessed substantial business, cultural, employment, or personal ties with Australia that were of benefit to Australia, as required by subclause 155.212(3) of the Migration Regulations 1994. This subclause also stipulated conditions regarding the applicant's absence from Australia and their residency or citizenship status. The Tribunal also considered whether there were compelling reasons for Ms. Lee's absence from Australia, and if she was a member of the family unit of a person who met the visa criteria.

The Tribunal considered the evidence that Ms. Lee was married to an Australian citizen, Mr. He, and had close personal ties with his three sons and grandson who resided in Australia. However, the Tribunal found that Ms. Lee had no business, cultural, or employment ties in Australia. While acknowledging her personal ties, the Tribunal was not satisfied that these ties were substantial and of benefit to Australia, particularly given her limited periods of presence in Australia over the preceding years. Furthermore, the Tribunal was not satisfied that there were compelling or compassionate reasons for Ms. Lee's last departure from Australia, nor that she was a member of the family unit of a person who met the criteria for a Subclass 157 visa, which was also considered in relation to her absence.

Consequently, the Tribunal affirmed the decision not to grant Ms. Lee a Subclass 155 (Five Year Resident Return) visa, finding that she did not meet the requirements of clause 155.212.