Neugnot v Minister for Immigration and Citizenship
[2025] FedCFamC2G 738
•23 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Neugnot v Minister for Immigration and Citizenship [2025] FedCFamC2G 738
File number(s): SYG 135 of 2021 Judgment of: JUDGE D HUMPHREYS Date of judgment: 23 May 2025 Catchwords: MIGRATION – Return (Residence) (Class BB) visa – Whether the Administrative Appeals Tribunal fell into jurisdictional error by failing to construe or misconstruing cl 155.212(3A) of the Migration Regulations 1994(Cth) – Consideration of the “substantial ties” and “benefit to Australia” criteria – Application dismissed Legislation: Migration Act 1958 (Cth) s 65
Migration Regulation 1994 (Cth) cl 155.212
Cases cited: Chen v Minister for Immigration [2020] FCA 781
Lorenzo Paduano v MIMIA [2005] FCA 211
Minister for Immigration v SZMDS (2010) 240 CLR 611
MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of hearing: 6 May 2025 Place: Parramatta Solicitor for the Applicant: Self-represented Litigant Counsel for the First Respondent: Ms Hooper Solicitor for the First Respondent: Ms Wilford (Sparke Helmore Lawyers) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 135 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LAURE FRANCE GIEULES NEUGNOT
Applicant
AND: MINISTER FOR IMMIGATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
23 MAY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Citizenship’.
2.The application is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,500.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision by the Administrative Appeals Tribunal (“the Tribunal”) dated 7 January 2021 to affirm the refusal made by a delegate of the Minister for Home Affairs (“the delegate”) to grant the applicant a Return (Residence) (Class BB) visa (“the visa”).
For the reasons outlined below, the application should be dismissed.
BACKGROUND
The applicant is a citizen of France.
The applicant has three siblings who are currently residing in Australia and are Australian citizens.
The applicant first arrived in Australia as a two-year-old with her parents and older brother in 1969. The applicant and her parents departed Australia on 21 July 1974. The applicant's right to reside permanently in Australia ceased on 13 June 1977. Since then, the applicant has travelled to Australia as follows:
·From 11 January 1999 to 3 February 1999;
·From 13 November 2000 to 4 December 2000;
·From 25 November 2009 to 10 December 2009;
·From 20 February 2012 to 11 March 2012;
·From 24 December 2014 to 1 December 2018, being granted the Subclass 457 visa
·over this period; and
·From 11 December 2018.
The applicant entered Australia on 24 December 2014 on a Subclass 651 Electronic Visitor visa. On 6 July 2015, the applicant and her husband applied for and were granted a Subclass 457 Temporary Work visa.
The applicant applied for the visa on 1 March 2019. At the time of application, the visa contained two subclasses: Subclass 155 (Five-Year Resident Return) and Subclass 157 (Three-Month Resident Return). The applicant advanced claims in respect of Subclass 155.
At [8], the Tribunal summarised the evidence the applicant provided in support of the application:
• Newspaper clippings with regards to her parents’ activities in Australia between 1969 and 1974;
• Evidence of her siblings residing in Australia and obtaining Australian citizenship;
• Photos of the applicant with her siblings and other family members in Australia; and
• Statements in support of the application.
The applicant claimed that after meeting her husband in 1997, they married in 2001, and due to the applicant’s husband having a child from a prior relationship, they were not able to leave France. The applicant further claimed that she and her husband started a business in 2002, which was successful, and in 2013, they decided to sell the business and start living in Australia.
At [10], the Tribunal summarised the claims made by the applicant’s migration agent:
• When the applicant left Australia with her parents in 1974 and when her permanent resident status ceased in 1977, she was too young to be able to make up her own mind as to what she wished to do;
• The applicant could not then return to Australia as she had family commitments with her husband who had shared custody of his daughter and she was involved in their business;
• Since being able to travel herself, the applicant has returned to Australia many times to attend weddings and other social activities with her siblings in Australia;
• The applicant has two brothers and a sister who reside in Australia;
• The applicant has a current full-time job working for an interiors company; and
• The applicant's husband is working as a chef which has allowed the applicant and her husband to be granted the Subclass 457 visa.
On 17 May 2019, the delegate refused to grant the applicant the visa on the basis that she did not meet cl 155.212(3A) of the Migration Regulations 1994 (Cth) (“the Migration Regulations”). The delegate was not satisfied that the applicant had substantial business, cultural, employment, or personal ties with Australia that were beneficial to Australia. Further, the delegate was not satisfied that there were compelling reasons for the applicant's absence since she last held the right to reside permanently in Australia.
On 5 June 2019, the applicant lodged an application for review of the delegate’s decision to the Migration and Refugee Division of the Authority.
On 7 January 2021, the Tribunal affirmed the delegate’s refusal to grant the applicant the visa. The Tribunal found that the applicant did not meet the criteria for the grant of a Subclass 155 visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).
THE TRIBUNAL’S DECISION
The applicant appeared before the Tribunal by telephone on 10 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, brothers and employer.
The applicant claimed to the Tribunal that her role with her employer was vital, and that the business was unlikely to operate in the same manner without her. The applicant's employer gave evidence supporting this claim, stating to the Tribunal that it would be very difficult to replace the applicant in her role and that it would certainly cost the business to lose the applicant as an employee.
At [24]-[26], the Tribunal outlined the applicable law to the applicant’s case, which can be summarised as follows:
·At the time of application, an applicant must satisfy one of the alternative requirements outlined in cl 155.212 of the Migration Regulations. These requirements essentially relate to the applicant being lawfully present in Australia for a certain time before the visa application, having substantial ties with Australia or being a member of the family unit of a person who meets these requirements.
·In this case, the applicant sought to meet cl 155.212(3A) of the Migration Regulations and did not claim eligibility under any other subclauses.
·Clause 155.212(3A) of the Migration Regulations requires that if the applicant is in Australia at the time of application, the Tribunal must be satisfied that he or she has substantial business, cultural, employment, or personal ties with Australia that benefit Australia. It also requires the applicant to have a particular residency history.
At [27], the Tribunal considered whether the applicant had substantial business or employment ties with Australia that were of benefit to Australia.
The Tribunal noted at [27] that the applicant was employed in a shop selling French provincial furniture. The furniture is imported into Australia although it is not made in France. The applicant’s employer indicated that the applicant’s French background provides a degree of ‘kudos’ to his business, the work the applicant does was previously done by another employee who is no longer with the company, and that the applicant had no personal investment in the business.
At [27], the Tribunal stated that whilst the applicant’s previous work experience in international exports and imports was of benefit, there was nothing to indicate that the applicant would not have been able to be replaced in her current employment, even if her particular skills would be “difficult to replace”.
At [28], the Tribunal stated that there was little information which indicated that the applicant’s husband’s employment is such that it would provide a substantial tie to Australia that would be of benefit to Australia.
At [29], the Tribunal was not satisfied that the applicant had substantial business or employment ties with Australia that were beneficial to Australia.
At [30], the Tribunal stated that little information was available about the applicant's substantial cultural ties with Australia. The Tribunal noted at [30] that apart from the applicant’s ties with her family, there was little information that would indicate that she has any specific cultural ties with Australia. At [30], the Tribunal stated that there was nothing to indicate that the applicant had made any contribution or participated in any particular Australian cultural institution.
At [30], the Tribunal was not satisfied that the applicant's limited cultural links with Australia supported a finding that she had substantial cultural ties to Australia that were beneficial to Australia.
At [31]-[32], the Tribunal noted the following:
·The applicant’s siblings all resided in Australia;
·The applicant’s father remained living in France;
·The applicant’s husband had no family or relatives who lived in Australia;
·The applicant’s husband’s daughter, Deborah, had visited Australia on one occasion, however remained living in France;
·The applicant’s siblings were all adults and had families of their own;
·There was nothing to indicate that the applicant’s siblings were dependent upon the applicant for any reason.
At [32], the Tribunal accepted that the applicant had a close relationship with her siblings and their families, however there was nothing to indicate that they were so dependent upon each other that it would have provided the applicant with a substantial personal tie to Australia.
Further, at [33], the Tribunal was not satisfied that the applicant's relationship with those relatives was anything other than a normal personal tie and that any ties that the applicant did have with her siblings or their children, were of benefit to Australia.
At [34], the Tribunal did not accept that if the applicant were not living in Australia, she would be unable to maintain her relationship with her siblings as she had previously.
Having taken into account the relationships the applicant and her husband have developed with her relatives and the wider Australian community, at [35], the Tribunal was not satisfied that the applicant had substantial personal ties with Australia that were beneficial to Australia.
At [36], having taken into account the relationships the applicant and her husband have developed with her relatives and the wider Australian community, the Tribunal was not satisfied that the applicant had substantial personal ties with Australia that were beneficial to Australia.
Accordingly, at [37], the Tribunal concluded that it was not satisfied that the applicant met the criteria in cl 155.212(3A)(a) of the Migration Regulations.
Although the Tribunal concluded that the applicant did not meet the criteria in cl 155.212(3A)(a) of the Migration Regulations, the Tribunal further considered whether the applicant would meet the requirements in cl 155.212(3A)(b) of the Migration Regulations.
At [39] the Tribunal outlined that in addition to having substantial ties with Australia, cl 155.212(3A)(b) of the Migration Regulations requires that unless there are compelling reasons for the absence, the applicant must not have been absent from Australia for a continuous period of five years or more since the date the applicant’s most recent permanent visa was granted or the date he or she ceased to be a citizen.
At [40], the Tribunal considered the case law interpreting the phrase ‘compelling reasons for absence’: Lorenzo Paduano v MIMIA [2005] FCA 211 (Paduano).
The Tribunal accepted at [42] that when the applicant was dependent upon her parents, she did not have the independence that would have allowed her to return to live in Australia without their consent or arrangement.
Additionally, at [42], the Tribunal stated that once the applicant turned 18, or from when she completed high school, the applicant would have been considered sufficiently mature and independent to determine what she wanted to do with her life, and certainly, the applicant and her husband have taken this attitude with their daughter, Deborah.
At [43], the applicant claimed to have met her husband in 1997 and that they were married five years later in 2002. The applicant claimed that as her husband had a joint custody arrangement with Deborah’s mother for the care of Deborah, she was compelled to remain in France until Deborah was of an age where she did not need to live with her father. The applicant stated that she and her husband decided this was when Deborah turned 16.
At [44], the Tribunal stated that there was a substantial period from when the applicant turned 18 in 1985 until she began a relationship with her husband in 1997, and there does not appear to have been any compelling reason for her absence from Australia.
At [45], the Tribunal noted that there was nothing to indicate that the applicant would not have been able to take steps to obtain employment in Australia or return to live in Australia after the applicant finished her university degree.
At [48], the Tribunal found that:
After the applicant completed high school, she simply continued her life living in France. She was not compelled to remain out of Australia, she simply decided to continue her life in France, obtaining further education, gaining employment and leading her life as she wished. There were no impediments or particular reasons why she could not depart France and return to Australia if she chose to do so, however, her particular circumstances and her personal preference at the time meant that her choice was to remain living and working in France.
At [49], the Tribunal found that the applicant did not take steps at that time to investigate the opportunity of returning to live in Australia, as the applicant did not have any desire or intention to leave France. The Tribunal found that this was not due to any compelling reason or requirement to care for anyone, but rather a matter of a life choice.
At [51], the Tribunal was not satisfied that, in particular, from 1985, when the applicant turned 18, until at least 1997, when she first met her husband, there were compelling reasons for her absence from Australia.
At [52], the Tribunal concluded that it was not satisfied that the applicant met the criteria in cl 155.212(3A)(b) of the Migration Regulations.
Accordingly, at [54], the Tribunal concluded that the applicant did not meet the visa's criteria, and at [55], the Tribunal affirmed the delegate's decision not to grant the applicant the visa.
GROUNDS OF JUDICIAL REVIEW
The applicant advances one ground of judicial review contained in an Originating Application filed on 25 January 2021. It is as follows (less particulars):
The Tribunal made a jurisdictional error by failing to construe or by misconstruing subcl 155.212(3a) in Sch 2 to the Migration Regulations 1994(Cth).
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. Although a French interpreter had been requested by the Court, there was no appearance by a French interpreter. The applicant was asked if she was happy to proceed in the absence of an interpreter. The applicant indicated that she was, with the Court noting that her English language skills were reasonable. The applicant however requested that her brother, who was present in Court, sit alongside her at the bar table and interpret any matters that she found difficult to understand. The Court agreed to this request.
At the commencement of the hearing, the Court outlined that it was undertaking judicial review, not merits review, and the explained the difference between the two types of review. The Court also carefully explained how the hearing would be conducted.
The Court ensured that the applicant was in possession of a copy of the Court Book, the respondent’s written submissions and a copy of the written submissions that had been prepared by Counsel who was no longer instructed in the matter.
The Court noted that the applicant had been disadvantaged as a result of her legal representative, who had apparently retired from practice, filing a notice of intention to withdraw but had not filed a notice of withdrawal, and as a result, correspondence relating to the hearing had still been sent to his address, being the last address for service of documents on the Court file.
The applicant was asked if, in the circumstances, she wished to apply for an adjournment. The applicant indicated she was happy to proceed with the hearing, notwithstanding she was unrepresented. The Court indicated that it would take into account as submissions, a letter that she had sent to the Court, along with the written submissions that had been previously provided by her former legal representative.
Those submissions focused on the submission that the Tribunal had not engaged within the meaning of the term “substantial” and had proceeded on the basis that it required a degree of dependency between the applicant and a person in Australia.
It was submitted that instead of a relationship of dependency, the term “substantial” requires a relationship of some importance to the parties, but not necessarily of such intensity. The use of the term must have been intended to ensure that the applicant has a settled and significant personal connection with Australia. It was submitted that this connection should not be excluded from being substantial because it is, in the words of the Tribunal, a “normal personal tie”.
It was submitted that the Tribunal could well have concluded the applicant had substantial personal ties in the ordinary meaning of that term. This then leaves the question of potential reasoning of the Tribunal with respect to the personal ties being “of benefit to Australia”.
It was submitted that whether “personal ties” are beneficial in this sense, requires some flexibility. It was further submitted that personal ties may, by their nature, be of benefit to Australia for intangible reasons. Thus, the emotional or other well-being of a member of the citizenry (in this case the applicant’s siblings and their families) has both a public dimension and a private one. One example of this was that the applicant has been a source of support for various members of her family where a serious illness has arisen, thus, they do not become a burden on the community including any need for mental health services. It was submitted that this was a realistic basis for concluding the criterion might be satisfied.
In respect of whether or not there were compelling circumstances which required the applicant to remain outside of Australia for a period greater than five years, it was submitted that if the Tribunal found there were compelling reasons for some of the period, then the remaining period must itself also give rise to compelling reasons.
It was noted that the applicant had left Australia as a minor with her parents. The applicant continued to live with her parents and then undertook education, married and had a stepchild in France. It was submitted this should be understood to entail compelling reasons, and as such that when the applicant turned 18 in 1985, until at least 1997 when she met her husband, there were compelling reasons for her absence from Australia.
It was further submitted that allied to the shortfall was a failure to appreciate the true effect of the reasons for judgement of Crennan J in Paduano. At [37] of that judgment the following appears:
Forceful reasons for absence may involve physical, legal or moral necessity or may, by reason of the forcefulness, be convincing. There is nothing in express wording of the relevant subclause which indicates that “compelling”, where it occurs should be read narrowly so to exclude forceful reasons which raise moral necessity or which are convincing…
At [41] of Paduano, the following appears:
… The applicant is the one who must have been “compelled” by the reasons for his absence, the requirement that the Minister be satisfied in respect of them means that the minister was entitled to make a judgement as to whether the reasons for the absence of forceful, and therefore convincing by reference to some standard of reasonableness such as a reasonable person in the same circumstances as the appellant. Even if I am wrong, and the subclause does not introduce any objective standard, any subjective judgement made by the Minister as to whether the reasons were compelling would still have to be reasonable in the administrative law sense.
It was submitted the Tribunal did not analyse the applicant’s circumstances appropriately. The applicant returned to France as a small child. The applicant was educated in France in a system and language different to that in Australia. The applicant’s presence in France until the age of 18 created a natural memento that was convincing to her, and whilst change may not have been impossible, incumbency and resistance to change is a force of its own. Once the applicant’s childhood is analysed together with her early adulthood, and the appropriate deference applied by the Tribunal, its conclusion as to compelling reasons should not stand.
THE FIRST RESPONDENT’S SUBMISSIONS
Counsel for the Minister noted that although the written submissions prepared by the previous Counsel for the applicant were not provided to her until very late the day before the hearing, she was in a position to deal with those orally.
It was noted that the Tribunal found the applicant did not meet the substantial ties of benefit to Australia criterion for the visa (cl 155.212(3A)(a) of the Migration Regulations); and did not meet the residency criterion (cl 155.212(3A)(b) of the Migration Regulations). These are cumulative requirements. If the applicant is to succeed, they will need to be demonstrated that the Tribunal’s reasoning in relation to both criteria is affected by jurisdictional error: VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [32] – [33].
Ground one contains a number of particulars. It was submitted the particulars (a) – (g) ignore that the Tribunal made findings encompassing both “substantial ties” and “benefit to Australia” as it was required to do as they are the two cumulative elements that make up cl 155.212(3A)(b) of the Migration Regulations. It was submitted the Tribunal did not err in its construction of the orderly English word “substantial” by importing requirements that the ties be unique or exceptional as pleaded pleaded by the particulars. The term “substantial” is not defined and carries its ordinary meaning: Chen v Minister for Immigration [2020] FCA 781.
It was submitted that particulars (h) – (j) by themselves do not reveal an argument of jurisdictional error.
With respect to particular (k), it was submitted that in relation to Paduano, Crennan J considered the meeting of “compel” and “compelling” in the context of the refusal to grant a Return Resident Visa. At [37] her Honour stated that “[t]he legislative expression is wide and unqualified” and that “[c]ompelling in its wide ordinary meaning means ‘forceful’”.
At [48] – [49] the following was said:
[48] It is necessary at this point to acknowledge the submissions made by the first respondent’s counsel. I accept, for the purposes of the decision, that the task of applying the subclause to the particular facts is a task committed to the judgement of the Tribunal. In the absence of matters such as, for example, bad faith or unreasonableness or a characterisation of the factors of jurisdictional fact, there can be no jurisdictional error arising out of a finding of satisfaction in respect of certain facts, if that state of satisfaction were open on the evidence
[49] However, excepting for the purposes of the application that the Tribunal’s application of the legislative requirement to a set of facts is a matter committed to it, the antecedent question, is whether the Tribunal’s gloss on “compelling reasons for the absence” (if wrong) revealed an error as to the matter of fact (i.e. the meaning of the ordinary words), which could not give rise to jurisdictional error or an error as to a matter of law.
It was submitted that Paduano is not authority for the proposition that where the applicant’s reasons for absence are regarded by the applicant as forceful or compelling to him or her, that is sufficient to satisfy cl 155.212(3A)(b)(i) of the Migration Regulations. Rather, as her Honour pointed at [41], it is the Minister, and thus the Tribunal on review, that is required to make a judgement as to whether the applicant’s reasons for the absence are compelling. While the applicant’s state of mind is capable of being relevant to the Tribunal’s state of satisfaction, it is not dispositive of whether the applicant satisfies the criterion.
In MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478, Bromberg J stated the following as to “compelling reasons” (citations omitted):
[10] That subclause is addressing whether there exists a sufficient basis to move the decision-maker to waive what would otherwise be criteria which an applicant for a Visa must satisfy. In that context, “compelling reasons” means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria. The circumstances must be sufficiently powerful to leader decision-maker to make a positive finding in favour of waiving the required criteria.
[11] As Whitlam J said in McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 at [10]:
Reasons for not applying the Sch 3 criteria may appear compelling to one person and not to another. The objective “compelling” does not introduce an objective standard. The waiver decision will always involve a subjective judgement.
[12] In the evaluative judgement to be made, the decision-maker makes consider a single circumstance or a multitude of circumstances. Ultimately the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred.
[13] The decision-maker needs to be “satisfied” that the compelling reasons exist.
It was submitted that ultimately the questions for the Tribunal when determining satisfaction of the two cumulative requirements in issue involved it making evaluative factual judgements. The fact that different decision-maker might have arrived at a different factual judgement does not demonstrate jurisdictional error: Minister for Immigration v SZMDS (2010) 240 CLR 611 at [131], [135] per Crennan and Bell JJ.
CONSIDERATION
The applicant’s sole ground of judicial review is the Tribunal fell into jurisdictional error by failing to construe or misconstruing cl 155.212(3A) of the Migration Regulations.
No issue is taken with the factual findings of the Tribunal, including the fact that the applicant’s right to reside permanently in Australia ceased on 13 June 1977, when the applicant and her parents departed Australia and returned to France.
Since that time, each of her three siblings have returned to Australia. Two are Australian citizens by birth, and her eldest brother, became an Australian citizen in 2006.
The applicant, together with her husband, who is not a party to the proceedings, visited Australia on a number of occasions during the period 1999 to 2012. The applicant and her husband have resided in Australia from December 2014 until December 2018 on a subclass 457 visa, and various bridging visas subsequent to being refused the Visa, the subject of this judgment.
The Tribunal, in the Court’s view, correctly found there were compelling reasons why the applicant had remained outside of Australia from the time she left in 1974 with her parents and siblings, until she turned 18 years of age in 1985. However, the Court does not accept that the mere fact the Tribunal found compelling reasons for a period of the time the applicant was outside Australia, necessarily means that compelling reasons must exist for the entirety of the period of absence. The period must be looked at both in totality, and in relation to any subsets of time where there may have been differing factual circumstances.
The Tribunal’s reasons set out matters that relate to both the applicant’s employment, her relationship with her three siblings, together with a statement of support by her husband.
The Tribunal found there were no compelling reasons as to why the applicant had remained in France, after the age of 18 years, when she was free to make up her own mind as to where she wished to live. The Tribunal, to Court’s mind, correctly found that there was a substantial period after the applicant turned 18 years of age in 1985, until she commenced her relationship with her now husband in 1997, where there does not appear to be any compelling reason for her absence from Australia. As the Tribunal found at [48], after the applicant completed high school, she simply continued living her life in France, obtaining further education, gaining employment and living her life as she wished. The applicant could have returned to Australia had she chosen to do so, however her particular circumstances and her personal preference at the time meant that her choice was to remain living and working in France.
The Court is satisfied that this was a finding that was open to the Tribunal on the evidence before it and for the reasons it gave. The Court is not satisfied that the Tribunal misinstructed itself as to the meaning of the word “compelling”. The evidence before the Tribunal was not such that required decision-maker to come to a different conclusion.
Given this finding, it is not necessary to consider whether the Tribunal misinstructed itself as to the requirements under cl 155.212(3A)(a) of the Migration Regulations. The Court is satisfied that a different Tribunal may have come to the conclusion that the existence of what is now almost the entirety of the applicant’s extended family (this being her three siblings and their families) might meet the requirement of a substantial personal ties with Australia. The Court is also prepared to find that a different Tribunal may have found that her presence in Australia was of benefit to Australia as required by the subclause. Further, the Court does not accept the proposition, as found by the Tribunal, that the removal of the applicant to France, would enable her to maintain the same ties with her siblings and extended family.
However, The Court is satisfied that it was open to the Tribunal to come to the conclusion it did, that whilst remaining in Australia would benefit the applicant personally, there was little evidence that would suggest that there would be a larger “benefit to Australia”.
In these circumstances, the Court is satisfied that the sole ground of judicial review has no merit, and the application must be dismissed.
In coming to this conclusion, the Court notes that the applicant and her extended family have deep ties to Australia. There is nothing to suggest that the applicant will be anything other than an asset to Australia if allowed to remain as a permanent resident. In these circumstances, it may be that this is an appropriate matter for Ministerial intervention. This is a matter for the applicant to pursue with appropriate assistance from a qualified migration practitioner.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 23 May 2025
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