Compelling Reasons for Absence

November 5, 2021 - Unreported Cases

The Applicant first arrived in Australia with his parents who became permanent residents. He later returned to his home country but returned to Australia numerous times on a temporary visa. The Applicant then applied for a Return (Residence) (Class BB) visa but this was refused due to the fact that the delegate was not satisfied that he had demonstrated a compelling reason for continuous absence from Australia since he first left the country. The Applicant sought assistance from Immigration Solutions Lawyers (ISL).

In order to be eligible for the visa, at the time of application the Applicant must meet one of the alternative requirements set out in clause 155.212. The Applicant meets those requirements if he is in Australia and the Minister or a delegate is satisfied that he;

has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia; and  has not been absent from Australia for a continuous period of 5 years or more since the date of grant of the applicant’s most recent permanent visa (unless there are compelling reasons for the absence).

The Applicant satisfied the substantial ties requirement. He provided evidence that he had worked in Australia for a number of years, he held bank accounts in Australia, paid tax in Australia, and he had close family members residing in Australia as permanent residents. The Applicant also had cultural ties with Australia in terms of his membership of various social and sporting clubs.

The Applicant failed the requirement of not being absent from Australia for a continuous period of 5 years or more. However, ISL submitted that there were compelling reasons for his absence. The Applicant was very young when he left Australia and as he was a minor, the decision to leave was made by his parents. Since entering adulthood, the Applicant  repeatedly visited Australia. He even made enquires with the Department  concerning applying for a Resident Return Visa. This indicates that the Applicant had continually tried to maintain connections with Australia. The Tribunal considered the circumstances that led to the Applicant being continuously absent beyond his control. The lack of control was considered to be a compelling reason for his absence. Therefore, the Tribunal found that the Applicant satisfied the criteria and remitted the application for reconsideration.