Tiang (Migration)

This matter concerned an application for a Subclass 155 (Five Year Resident Return) visa by a person who was outside Australia and not a member of the family unit of a person holding a Return Resident visa. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria set out in clause 155.212(3) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 155.212(3), which mandates that an applicant outside Australia must have substantial business, cultural, employment, or personal ties with Australia that are of benefit to Australia, and either have not been absent for a continuous period of five years or more unless there are compelling reasons and they held a permanent visa or last departed as a permanent resident or citizen (and subsequently lost citizenship), or were an Australian citizen or permanent resident less than 10 years before the application and had not been absent for a total of more than five years since their last departure as a citizen or permanent resident, unless there were compelling reasons.

The Tribunal reasoned that the applicant's Subclass 155 visa expired on 27 November 2001, and she had not held a permanent visa since that date. She had not been an Australian citizen and had not last departed Australia as an Australian permanent resident. Consequently, she failed to meet the criteria under clause 155.212(3)(a). Furthermore, as her last period as an Australian permanent resident ended on 27 November 2001, and the current application was made on 23 August 2018, she had been absent from Australia for nearly 17 years, thus failing to meet the criteria under clause 155.212(3)(b). As the applicant did not satisfy either of these subclauses, any ties she claimed to have with Australia were rendered irrelevant to the assessment of her eligibility for the visa.

The Tribunal affirmed the decision not to grant the applicant a Return (Residence) (Class BB) visa, as she did not meet the criteria for a Subclass 155 visa. No claims were made that she met the criteria for a Subclass 157 (Three Month Return Resident) visa.