Compelling Reasons For Absence

An increasing phenomenon in the last 20 plus years has been migrants to Australia returning back to their country of origin for varying reasons. But many in the end wish to return and have fallen foul of paragraph 155.212(3A)(2) this provision in the resident return visa criteria (that the applicant):

has not been absent from Australia for a continuous period of 5 years or more since:

(i) the date of grant of the applicant’s most recent permanent visa, unless there are compelling reasons for the absence

Bartolo 071429711 [2008] MRTA 207 (18.3.08) was about a Maltese who returned to Malta when he wife became ill.  She remained ill for many years, eventually died, he re-married, realised he had made a mistake but felt he couldn’t leave Malta because of his children’s education needs.

The MRT picking up the reasoning in the Federal Court decision of Lorenzo Paduano v MIMIA [2005] FCA 211.  The MRT concluded:

In considering the meaning of ‘compelling’ the Court in Paduano held.. it should not be read narrowly so as to exclude forceful reasons which raise moral necessity. Equally, there is nothing which confines it to reasons incorporating an involuntary element, involving circumstances beyond the applicant’s control as suggested by the examples in the[PAM] guidelines.

.. the Court in Paduano v MIMIA also concluded.. the expression ‘compelling reasons for the absence’ refers to the applicant’s absence and it is the applicant who must have been ‘compelled’ by the reasons for his absence. It is for the [MRT]..to make a judgment as to whether the reasons for the absence are forceful (as opposed to.. having to ‘be compelled’ by the compelling reasons).

Essentially, the applicant at the time was at the mercy of a confluence of circumstances in which he could not consider his own personal wishes, although it had always been his desire to return to Aust. The applicant was also mindful that his son had been traumatised once already by having been removed from his birth country Aust and thought that a further relocation would interrupt his sons’ studies and general well being. In the circumstances, the applicant was required to put ahead of his immigration status many other considerations that can be taken to be “compelling” and that were beyond the control of the applicant. The [MRT] considers.. the applicant’s absence from Aust does raise issues of “moral necessity” and are “convincing” in terms of the applicant finding himself in a situation that was not conducive to returning to Aust..

Offshore/onshore – 155 resident return visa

The MRT decision of Widrose 060793662 [2008] MRTA 210 (18.3.08) demonstrates how important it can sometimes be to apply for a subclass 155 visa onshore.  The MRT noted:

Had he applied again for a resident return visa while physically present in Australia, he would not need to have overcome the 5 year absence test because for onshore applications it dates from the last permanent visa grant prior to the visa application (in this case 4.11.01), whereas with offshore applicants it dates from the last departure from Australia (8.8.99) However, the visa applicant again departed Australia on 31.8.06 without lodging any such application.

But the MRT found that there were compelling reasons for the absence on 2 grounds:

…‘ involved’ in is not defined, and.. there is nothing in the policy to preclude a person from having substantial business ties with Australia if they are connected with a foreign company which trades with an Australian company.. the evidence before the [MRT] indicates .. the applicant’s company, Protectol, has been closely involved with an Australian business, O-tech, for the past 10 years, that this has generated substantial revenue for Australia through the export of goods to the value of millions of dollars, in circumstances where the applicant could have elected to source those products elsewhere.

The [MRT] concludes.. the.. applicant has been involved in an Australian business, and finds that he has substantial business ties with Australia that are of benefit to Australia.

The MRT also found he met the personal ties test:

The evidence.. indicates.. the.. applicants have a number of close relatives and family friends who are Australian citizens or permanent residents and with whom they have close and regular contact… This includes 3 siblings of the.., a brother and a cousin of the .. applicant, as well as various friends. The applicants have also submitted documentary evidence to the effect.. they also own a house in Australia which is currently let out, and.. tax is paid on the income from that house// the [MRT] is satisfied.. the.. applicants have substantial personal ties to Australia which are of benefit to Australia.

On the compelling point the MRT found:

In this case, the [MRT] accepts.. the.. applicant was a hands-on managing director of Protectol in Dubai, and.. owing to the demands of the job he felt compelled to remain there in order to ensure.. it was done properly. It was clearly not impossible for the visa applicant to have returned to Australia; as he did so as soon as the visa application was refused. However, the [MRT].. following the decision in Paduano[1], the correct approach requires a judgement as to whether a reasonable person.., would have been compelled by the reasons for his absence. Adopting this approach, the [MRT] is satisfied ..the.. applicant had compelling reasons for not returning to Australia in the relevant period.

[1] the Federal Court decision of Lorenzo Paduano v MIMIA [2005] FCA 211 & see discussion in Bartotlo  above.