Ward (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 155 (Five Year Resident Return) visa. The applicant sought to satisfy the criteria under subclause 155.212(3) of the Migration Regulations 1994, which requires the applicant, when outside Australia, to have substantial business, cultural, employment, or personal ties with Australia that are of benefit to Australia. The Tribunal also examined whether the applicant met the criteria under subclause 155.212(2), which requires lawful presence in Australia for a specified period.

The primary legal issue before the Tribunal was whether the visa applicant had established "substantial ties of benefit" to Australia as required by subclause 155.212(3). This involved assessing the nature and significance of the applicant's contributions to heritage restoration and gardening projects in Australia, as well as considering the presence of their families, properties, finances, and residence in both Australia and Canada. A secondary issue was whether the applicant had been lawfully present in Australia for a total of at least two years in the five years immediately preceding the visa application, as stipulated by subclause 155.212(2).

The Tribunal found that the visa applicant did not meet the requirements of subclause 155.212(2) as departmental records indicated they had been lawfully present in Australia for less than two years in the five years prior to their application. However, the Tribunal was satisfied that the visa applicant met the criteria under subclause 155.212(3), having established substantial cultural and personal ties of benefit to Australia through their involvement in heritage restoration and gardening projects.

Consequently, the Tribunal remitted the application for a Return (Residence) (Class BB) visa for reconsideration by the Minister, with the direction that the visa applicant meets the requirements of subclause 155.212(3).