Vardar (Migration)

This matter concerned an application for a Subclass 155 (Five Year Resident Return) visa by a former Australian permanent resident. The applicant sought to satisfy the residency and substantial ties criteria under clauses 155.211 and 155.212(3A) of Schedule 2 to the Migration Regulations 1994. The Tribunal was required to determine whether the applicant met these requirements, particularly in light of a prolonged absence from Australia.

The primary legal issues before the Tribunal were whether the applicant met the definition of a former Australian permanent resident for the purposes of clause 155.211, and whether she satisfied the criteria under clause 155.212(3A). This latter clause required the Tribunal to be satisfied that the applicant had substantial business, cultural, employment, or personal ties with Australia that were of benefit to Australia, and that she had not been absent from Australia for a continuous period of five years or more, unless there were "compelling reasons" for such an absence.

The Tribunal found that the applicant was a former Australian permanent resident and thus met clause 155.211. Furthermore, the Tribunal was satisfied that the applicant had substantial personal ties with Australia that were of benefit to Australia, given her presence in Australia with her Australian citizen daughter and grandchildren. The Tribunal also considered the meaning of "compelling reasons" for absence, as interpreted by the Federal Court to mean "forceful" reasons. The Tribunal concluded that the applicant's reasons for her prolonged absence, which involved fleeing from family violence and the threat thereof, were compelling.

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