Australian Immigration Daily News

A person who holds permanent residency status in Australia, but then returns to their home country and remains there for a long period of time may encounter significant difficulty in getting a Resident Return visa to regain their permanent residency status. 

The eligibility criteria for a Resident Return visa (Subclass 155) that are specified in Schedule 2 of the Migration Regulations  specify not only that the applicant must have “substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia” (clause 155(212)(3A)(a), but also, if the person has been absent for a continuous period of 5 years or more since the date of grant of the applicant’s most recent permanent visa”, must demonstrate that there were “compelling reasons” for the absence (clause 155.212(3A)(b). 

So what reasons for being absent from Australia for a period of more than 5 years can be considered sufficiently “compelling” to support the grant of a Resident Return visa.  This question was considered by the Federal Court of Australia in the leading case of Paduano v Minister for Immigration and Multicultural Affairs (2005) FCA 211 and was recently re-visited by Judge Neville of the Federal Circuit Court in Cirillo v Minister for Immigration & Anor, (2015) FCCA 2137 (14 August 2015). 

In Paduano, Justice Crennan of the Federal Court held that the word “compelling” should be interpreted in the following manner: 

“The legislative expression is wide and unqualified. “Compelling” in its wide, ordinary meaning means ‘forceful’. Forceful reasons for an absence may involve physical, legal or moral necessity or may, by reason of their forcefulness, be convincing. There is nothing in the express wording of the relevant subclause which indicates that ‘compelling’, where it occurs, should be read narrowly so as to exclude forceful reasons which raise moral necessity or which are convincing. Equally, there is nothing in the express wording, or the context, which indicates that ‘compelling reasons for absence’ must be confined to reasons incorporating an involuntary element, involving circumstances beyond a person’s control, involving physical or legal necessity….” 

It is the last sentence of the language quoted above that is of importance and interest:  under the Paduano decision, the reasons why an applicant has remained overseas for a period of more than 5 years since the grant of their last permanent residency visa do not need to be “beyond the person’s control”.  In other words, a person can voluntarily choose to remain overseas for more than 5 years, and as long as the person’s reasons for doing so are “compelling” (forceful) then the period of absence will not disqualify the person from getting a resident return visa. 

How then, is a judgment to be made as to whether the person’s reasons should be considered “compelling” for the purpose of testing whether the criteria for the grant of a Resident Return visa have been met?

Justice Crennan also addressed these issues in Paduano.  Her Honour held that this determination should be made based on an “objective standard”, namely, whether a reasonable person in the same circumstances as the applicant for the Resident Return visa, would have found the reasons for remaining outside of Australia, “compelling”. 

So did the applicant in Cirillo succeed in showing that his reasons were “compelling”? The Department didn’t think so, and neither did the AAT.  The background of the case was that the applicant originally arrived in Australia with his wife in 1983. After living in Australia for 12 years, until 1995, they returned to Italy. Their reasons for doing so was that the applicant’s wife had been injured in a car accident, and had developed depression as a result, and her doctors advised that it would be best for her health if she lived closer to her parents and her extended family. The applicant, his wife and their daughter thus went back to Italy and stayed there for 17 years.  The applicant’s reasons for remaining in Italy included that his daughter and the husband she married in Italy had been unable to find full-time employment in Italy and that the applicant felt that he did not have an option other than to build a house for her and his son-in-law, and that various factors had caused the construction of the house to take longer than usual.  The applicant also claimed that because of his cultural background that placed great emphasis on “looking after family”, he felt that he could not leave his daughter behind and return to Australia.  Also, his daughter had two children in Italy, and the applicant felt “compelled” to remain in Italy so that he could attend their baptisms and first communions. 

So where did the AAT’s “jurisdictional error”, in refusing to accept that the applicant’s reasons for remaining in Italy for 17 years, lie? According to Judge Neville, the jurisdictional error arose because the AAT did not follow Paduano  in that it failed to accept that the applicant felt compelled by the “moral necessity”  of his family circumstances and because the AAT did not properly consider the case in light of the “standard of reasonableness” – in other words, in light of what a reasonable person in the same circumstances as the applicant would have done.  Consequently, Judge Neville determined that it was appropriate to quash the AAT’s decision. 

It is my own view that the “reasonable person” standard that was declared in Paduano is not really completely “objective”:  what one person (Departmental officer, Tribunal member, Federal court judge) may consider to be a reasonable course of action in certain circumstances might certainly be thought to be “unreasonable” by someone else.  I should say that I have recently handled a controversial RRV case and my research revealed that the MRT decisions concerning what could be considered “compelling circumstances” were all over the lot!!! I also wonder if it really is “jurisdictional error” if the AAT turns its mind to the question  of whether the applicant’s reasons for remaining overseas are compelling, but then decides that they are not. 

What are your thoughts about this case? Do you agree with Judge Neville’s conclusion that coming from a culture where “family and blood links are of utmost importance”, and one in which great importance is places on looking after family and saving face as a provider” are really considerations that create a “moral necessity” to remain overseas? In the case that I worked on (still awaiting final determination) my applicant was literally “trapped” in the UK after he went home to protects a step-sister who was suffering extreme domestic abuse, had lost contact with the rest of his family in Australia and did not have the money to pay for travel to get himself back to Australia. In his “great compassion”, the Tribunal member who heard my case concluded that it was a “lifestyle choice” for my client to remain in the UK scraping by on a subsistence living earned by travelling around coastal areas and collecting shellfish and bait off of beaches.  

Well, as we all know, just about anything that can happen, may happen in a legal case!!

Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837