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Permanent Resident Return Visa Refusal: Migration Tribunal Reasons

Matter Refused: Return Residence Visa

This decision considered whether lawfully present in Australia; compelling reasons for absence.

The applicant applied for a Return (Residence) (Class BB) visa which was refused by a delegate of the Minister for Immigration and Citizenship on the basis that he did not satisfy cl.155.212(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations). Clause 155.212(2) required, inter alia, that the applicant be lawfully present in Australia for a period of, or periods that total, not less than two years in the period of five years immediately before the visa application. This is not a matter our firm handled.

The delegate found that the visa applicant applied for his visa on 25 July 2006, despite last departing Australia in 1995 and not returning after that date. The review applicant claimed that compelling circumstances had prevented the visa applicant from returning to Australia earlier.

These compelling circumstances were that the visa applicant's mother had died in 2000, that he had been required to provide care to his father who suffered health problems, that he was a 'critical resource' in his employer's offshore project from which he could not depart and that he had always intended to return to Australia.

It was also argued that he was under the mistaken belief that previous visa extensions had been granted by the Department on the basis that he was living offshore with his daughter, an Australian citizen, and would therefore continue to be eligible. The review applicant also suggested that there had been a change in the relevant visa regime of which the visa applicant was unaware and that this should not be considered against his application.

Held: Decision under review affirmed.

On review it accepted that the visa applicant was a former Australian permanent resident, as required by the Regulations. However, it also accepted relevant evidence that the visa applicant had not been lawfully present in Australia since 1995. The review body accordingly found that the visa applicant had failed to meet cl.155.212(2). On the review it was not accepted that the visa applicant's care for his father, predominately undertaken by his sisters in India, or his overseas work commitments were compelling reasons for his absence for the purposes of cl.155.212(3).

Also it was considered that lack of awareness of the Regulations did not constitute compelling circumstances. Further the visa applicant was bound to be assessed against the Regulations in force at the time of his visa application, not at time of review. It was found accordingly that the visa applicant did not satisfy cl.155.212 or demonstrate compelling reasons for his absence from Australia.

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