Savic (Migration)

This matter concerned an application for a Subclass 155 (Five Year Resident Return) visa by a visa applicant who was outside Australia at the time of application. The applicant sought to rely on subclause 155.212(3) of the Migration Regulations 1994, which requires the applicant to demonstrate substantial ties with Australia that are of benefit to Australia, alongside specific residency or citizenship history and a lack of prolonged absence without compelling reasons. The Tribunal was required to determine whether the applicant met these criteria.

The primary legal issues before the Tribunal were whether the visa applicant met the requirements of subclause 155.212(3) of the Migration Regulations 1994. Specifically, the Tribunal had to assess if the applicant possessed substantial business, cultural, employment, or personal ties with Australia that were beneficial to the country, and whether the applicant's absence from Australia for almost 20 years was supported by compelling reasons. The Tribunal also considered whether the applicant met the alternative criterion under subclause 155.212(2), which requires a minimum of two years lawful presence in Australia within the preceding five years.

The Tribunal found that the visa applicant did not meet the requirements of subclause 155.212(2) as their total time spent in Australia in the five years prior to the application was less than nine months. Regarding subclause 155.212(3), the Tribunal concluded that the applicant had not been absent from Australia for less than five years, nor had they provided evidence of compelling reasons for their prolonged absence of nearly 20 years. The Tribunal interpreted "compelling reasons" in line with Federal Court precedent, requiring forceful and convincing reasons for the absence. As the applicant failed to satisfy the substantial ties criterion and the compelling reasons requirement for their extended absence, the Tribunal affirmed the decision not to grant the visa.