Widjaja (Migration)

This matter concerned an application for a Return (Residence) (Class BB) visa, Subclass 155 (Five Year Resident Return) visa. The applicant sought to demonstrate that they met the criteria for the visa, specifically by having substantial ties to Australia that were of benefit to Australia, and by having a particular residency history. The Tribunal was required to determine whether the applicant satisfied these requirements.

The primary legal issue was whether the applicant met the criteria under subclause 155.212(3A) of the Migration Regulations 1994. This subclause requires the applicant, who was in Australia at the time of application, to satisfy the Minister that they possess substantial business, cultural, employment, or personal ties with Australia that are of benefit to Australia, and that they have not been absent from Australia for a continuous period of five years or more since the grant of their most recent permanent visa, unless there are compelling reasons for such absence. The Tribunal also considered whether the applicant met alternative criteria under subclauses 155.212(2) and (3), which were not satisfied.

The Tribunal found that the applicant did not have substantial ties to Australia that were of benefit to Australia. While the applicant's wife and children were residing in Australia on temporary student and student guardian visas, the Tribunal was not satisfied that this constituted substantial personal ties of benefit to Australia, particularly as the children were expected to return to Indonesia upon completion of their studies. The applicant's business commitments in Indonesia and plans to establish a business in Australia were not sufficient to establish the requisite ties. Consequently, the Tribunal affirmed the decision not to grant the visa.