Allen (Migration)

[2017] AATA 1400

Allen (Migration) [2017] AATA 1400 (16 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tony Charman Allen

VISA APPLICANTS:  Mr Gregory John Allen
Mrs Kimberley Ann Allen
Miss Caitlyn Deborah Allen
Mrs Max Peter Allen
Miss Amelie Rose Allen

CASE NUMBER:  1703436

DIBP REFERENCE(S):  CLF2016/46361

MEMBER:Kira Raif

DATE:16 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Special Eligibility (Former Resident) (Class CB) visas.

Statement made on 16 August 2017 at 3:43pm

CATCHWORDS

Migration – Special Eligibility (Former Resident) (Class CB) visa – Subclass 151 – Age of applicant – Applicant neither long residence applicant nor defence service applicant – Application mistakenly lodged at wrong office – Application validly made after applicant turned 45

LEGISLATION

Migration Act 1958, ss 65, 351

Migration Regulations 1994, r 2.07(5), Schedule 1, Item 1118A(3), Schedule 2, cl 151.212, cl 151.321

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 December 2016 to refuse to grant the visa applicants a Special Eligibility (Class CB) Subclass 151 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of the UK. The first named visa applicant (the applicant) was born on 30 July 1971. He applied for the visa on 4 August 2016. The application includes his partner and children. The delegate refused to grant the visa on the basis that the applicant did not meet cl. 151.212 as the applicant had turned 45 at the time the application was made. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 16 August 2017 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. Subclass 151 Former Resident is the only subclass of Special Eligibility (Class CB). Relevant to this review is cl. 151.212, which requires the applicant to be a long residence applicant or a defence service applicant. These terms are defined in Part 151.1.

   Is the applicant a long residence applicant or a defence service applicant?

5. There is no evidence before the Tribunal that the applicant has completed at least three months continuous Australian defence services or that he was discharged before completing defence service. The review applicant confirmed in oral evidence that the visa applicant has not completed defence service. The Tribunal is not satisfied that the applicant is a defence service applicant.

6. The Tribunal has considered whether the applicant is a long residence applicant. Paragraph (d) of the definition of a ‘long residence applicant’ requires that the applicant has not turned 45 at the time of the application. The applicant indicated on the application form that he was born in July 1971. As his application for the visa was validly made on 4 August 2016, the Tribunal finds that the visa applicant had turned 45 at the time the application was made. He does not meet paragraph (d) and is not a long residence applicant.

7. In his submission to the Tribunal the review applicant notes that the application was sent to the Department earlier but it was mistakenly sent to the Canberra and then the Adelaide offices of the Department and was not received at the right office until a few days later. The review applicant provided the same information in oral evidence to the Tribunal. The Tribunal notes that Item 118A(3) of Schedule 1 provides that an application must be made at the place, and in the manner, (if any) specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5). The relevant Instrument, IMMI 16/042 - Arrangements for Resident Return Visa Applications 2016/042, provides that the application must be made by posting it to the Northbridge office of the DIBP or couriering it at the Wellington Street office of DIBP. Sending an application to any office other than the prescribed office does not allow for a valid application to be made. Thus, while the Tribunal acknowledges that the application was mistakenly lodged at the wrong office of the Department and was delayed for that reason, the Tribunal finds that the application was not validly made until it was sent to the prescribed office and that was not done until 4 August 2016. By that time, the visa applicant had turned 45.

8. The Tribunal is not satisfied the visa applicant meets paragraph (d) of the definition of ‘long residence applicant’. He does not meet cl. 151.212 and the secondary applicants do not meet cl. 151.321. There is no evidence that the secondary applicants meet the primary criteria for visa grant and the review applicant confirmed in his oral evidence to the Tribunal that the visa applicant’s family are not “long residence applicants”.

9. The review applicant submits to the Tribunal that his bother is the only family member without the Australian visa as all his siblings live in Australia or have the right to live in Australia. The review applicant noted that their parents are in Australia and are getting old and the visa applicant prefers to live in Australia with his family. The review applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

   Conclusion

10. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

11. The Tribunal affirms the decision not to grant the applicants Special Eligibility (Former Resident) (Class CB) visas.

    Kira Raif
    Senior Member