MOLLUSO (Migration)

This matter concerned an application for a Subclass 155 (Five Year Resident Return) visa. The applicant, who had been absent from Australia as a permanent resident for approximately 39 years, sought to rely on substantial personal ties with Australia, including seven siblings, one child, and two grandchildren residing there. The applicant had left Australia with her husband, who suffered from depression, and had raised a family in Italy. After her husband's death, she claimed there were no compelling reasons for her continued absence from Australia.

The primary legal issue before the Tribunal was whether the applicant could satisfy the requirements of subclause 155.212(3A)(b) of Schedule 2 to the Migration Regulations 1994. This subclause requires that if an applicant is in Australia at the time of application, they must have substantial business, cultural, employment, or personal ties with Australia that are of benefit to Australia, and must not have been absent from Australia for a continuous period of five years or more since the grant of their most recent permanent visa, unless there were compelling reasons for the absence. The applicant did not claim to meet other criteria within clause 155.212.

The Tribunal considered the applicant's residency history, noting she entered Australia as a permanent resident in 1967 and her last permanent residency visa was granted in 1978. She last departed Australia as a permanent resident on 1 April 1980. In the two years prior to her visa application, she had spent approximately nine months in Australia. The Tribunal was not satisfied that the applicant had been lawfully present in Australia for the required period under other subclauses, nor that she was a member of the family unit of a person who met the visa requirements. Crucially, regarding subclause 155.212(3A)(b), the Tribunal found that the applicant had been absent from Australia for a continuous period of more than five years since the grant of her most recent permanent visa. While acknowledging her substantial personal ties to Australia, the Tribunal concluded that the applicant had not demonstrated compelling reasons for this prolonged absence.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Return (Residence) (Class BB) visa.