Mimoso (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a subclass 155 (Five Year Resident Return) visa. The applicant arrived in Australia as a baby in 1999, travelling on his mother's passport, and an incoming passenger card indicated he was a "resident returning to Australia." However, departmental records did not reflect his arrival, and despite his family's belief that he was granted entry as a dependent on his mother's visa, the delegate could not find evidence of him ever holding an Australian permanent visa.

The central legal issue before the Tribunal was whether the applicant satisfied the residency and citizenship requirements for a subclass 155 visa, specifically clause 155.211. This required determining if the applicant had ever been the holder of an Australian permanent visa, given the absence of any record of such a grant in departmental systems. The Tribunal also had to consider the implications of the applicant's long-term presence in Australia and the circumstances surrounding the lack of official record of his immigration status.

The Tribunal acknowledged that the applicant arrived in Australia as a baby and had resided there for most of his life, with his immediate family also lawfully residing in Australia, including his father and brother who were Australian citizens. Despite the lack of documentary evidence confirming the grant of a permanent visa to the applicant, the Tribunal found that unique and exceptional circumstances existed. The Tribunal reasoned that the application of the relevant legislation in this case would lead to an unfair or unreasonable result due to the compassionate circumstances. Consequently, the Tribunal affirmed the decision not to grant the visa and referred the matter to the Department for consideration by the Minister.