Sidhu (Migration)

This matter concerned an application for a Subclass 155 (Five Year Resident Return) visa. The applicant sought review of a decision not to grant the visa. The applicant's last permanent visa had expired more than 10 years prior to the application, and at the time of application, the applicant was outside Australia.

The primary legal issue before the Tribunal was whether the applicant met the eligibility criteria for the Subclass 155 visa, specifically concerning the requirement to have been lawfully present in Australia as a permanent visa holder for a specified period, or alternatively, to have substantial ties with Australia. The Tribunal also considered whether the applicant was a member of the family unit of an Australian citizen and whether there was any discretion to waive the visa requirements.

The Tribunal reasoned that the applicant did not meet the criteria under subclause 155.212(2) as they had not been lawfully present in Australia as a permanent visa holder for at least two years in the five years immediately preceding the application. The applicant's travel to Australia in the preceding years had been on Electronic Travel Authorities, which did not confer permanent resident status. Furthermore, the applicant did not meet the criteria under subclause 155.212(3A) as they were outside Australia at the time of application and did not satisfy the conditions related to substantial ties or previous permanent residency status. The Tribunal noted that it did not have the discretion to waive these legislative requirements.

Consequently, the Tribunal affirmed the decision not to grant the visa, finding that the applicant did not meet the necessary eligibility criteria.