TANG (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 review applicant, the visa applicant's daughter, is an Australian permanent resident, and the visa applicant's granddaughter is an Australian citizen. The dispute centred on whether the visa applicant met the criteria for the visa, specifically the requirement for "compelling reasons" for her absence from Australia.

The primary legal issue before the Tribunal was whether the visa applicant had established "compelling reasons" for remaining absent from Australia since September 2015, as required by subclause 155.212(3) of the Migration Regulations 1994. This subclause necessitates that an applicant outside Australia must demonstrate substantial business, cultural, employment, or personal ties with Australia that are of benefit to Australia, and either meet specific residency requirements or have compelling reasons for an absence exceeding five years. The Tribunal was also required to determine if the applicant met the threshold requirements of clause 155.211 and the alternative criteria under clause 155.212.

The Tribunal found that the visa applicant met clause 155.211 as a former Australian permanent resident whose most recent permanent visa had not been cancelled. Furthermore, the Tribunal was satisfied that the visa applicant had substantial personal ties with Australia that are of benefit to Australia, evidenced by her permanent resident daughter and citizen granddaughter. However, the Tribunal did not make a definitive finding on whether there were compelling reasons for the applicant's absence exceeding five years, noting the applicant's husband's death, her return to her home country to care for her and manage his estate, the breakdown of her marriage, her health, and her granddaughter's schooling as factors to be considered in this regard.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the visa applicant met the criteria under clauses 155.211 and 155.212(3) of Schedule 2 to the Regulations.