Tahir (Migration)

The Administrative Appeals Tribunal considered an application for a Resident Return (Class BB) visa by an Ethiopian national. The applicant, who arrived in Australia in 2012 and was granted a Partner visa (Subclass 100) in 2013, had his visa cancelled by operation of law in March 2015. However, he was not notified of this cancellation until January 2022. The applicant subsequently applied for a Resident Return visa while onshore, having not left Australia since his arrival.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 155 (Five Year Resident Return) visa, specifically clauses 155.211 and 157.211. This involved assessing his eligibility for such a visa despite the prior cancellation of his permanent visa and the significant delay in notification.

The Tribunal noted that the applicant had resided in Australia for a lengthy period with his adoptive mother, an Australian citizen, and had established substantial cultural and personal ties to the country. Crucially, the Tribunal considered departmental advice from March 2015 which indicated that the applicant's visa would not be automatically cancelled as a consequence of his sponsor's visa cancellation, and that there would be no good reason to cancel the applicant's visa. Despite this, the applicant's visa was later cancelled, and he was not informed for almost seven years. The Tribunal acknowledged the applicant's participation in the community and his efforts to obtain Australian citizenship, which was refused due to his unlawful non-citizen status.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a Resident Return visa. However, the Tribunal recommended that the matter be referred for consideration of Ministerial intervention, acknowledging the unique circumstances of the case, including the delayed notification of visa cancellation and the applicant's established ties to Australia.