Freestall (Migration)

[2024] AATA 213

Freestall (Migration) [2024] AATA 213 (8 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Janine Freestall

REPRESENTATIVE:  Mr SIMON JEANS

CASE NUMBER:  2210526

HOME AFFAIRS REFERENCE(S):          BCC2022/718391

MEMBER:Deputy President Justin Owen

DATE:8 February 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Special Eligibility (Class CB) visa.

Statement made on 08 February 2024 at 2:34pm

CATCHWORDS

MIGRATION – Special Eligibility (Class CB) visa – Subclass 151 (Former Resident) – holder of a substantive visa – long resident applicant or a defence service applicant – lengthy period of unlawful residence – successful businesses – age requirements – referral for Ministerial Intervention – compassionate circumstances – no family in Great Britain - contribution to the community – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 151.111, 151.211, 151.212

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 Home Affairs on 6 July 2022 to refuse to grant the visa applicant a Special Eligibility (Class CB) Subclass 151 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 18 March 2022. The delegate refused to grant the visa on the basis that at the time of application the applicant did not meet cl 151.211 and cl 151.212 of the Migration Regulations for the grant of the visa.  

3. The applicant appeared before the Tribunal via videoconference from the Tribunal’s Brisbane Registry on 24 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Noreen Flood and Ms Noreen Scanlon.

4. The applicant was represented in relation to the review.  The applicant’s representative attended the hearing.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. At the time of application, if the applicant is in Australia, the applicant must either be the holder of a substantive visa, other than a Subclass 771 (Transit) visa (cl 151.211(a)); or  alternatively, if the applicant is not the holder of a substantive visa, and immediately before ceasing to hold a substantive visa, the applicant was not the holder of a subclass 771 (Transit) visa; they must satisfy the Schedule 3 criteria (cl 151.211(b)).

7. Clause 151.212 requires the applicant to demonstrate they are a long resident applicant or a defence service applicant as defined at cl 151.111.   

   BACKGROUND

8. The applicant is a 74-year-old female British national.  She is single and has never married.  The applicant has no children and no immediate family living in Great Britain. The applicant has resided in Australia since November 1986, and last held a substantive visa on 22 May 1987.  Whilst living in Australia as an unlawful non-citizen the applicant has built and run a number of successful businesses.  At the time of decision she lives on the Sunshine Coast after spending many years living in Sydney.  The applicant financially supports herself, previously from the income generated by her business and now with her superannuation as well as a British pension.

9. The applicant has not departed Australia since November 1986.

   Does the applicant meet the criteria for the grant of the visa?     

10. The applicant does not dispute that she does not meet the criteria for the grant of the visa.  In both her written submissions, and her oral submissions at the Tribunal’s hearing, the applicant conceded she was unable to meet the time of application criteria for the grant of a Special Eligibility (Class CB) subclass 151 visa. 

11. Clause 151.211(a) requires that at the time of application, the applicant was in Australia as the holder of a substantive visa, other than a Subclass 771 (Transit) visa.  The applicant confirmed that at the time of application on 18 March 2022 she did not hold a substantive visa, nor dd she hold a Subclass 771 (Transit) visa.  The applicant was in fact unlawful and held no valid visa.  The Tribunal finds the applicant does not meet cl 151.211(a).

12. In relation to cl 151.211(b), the Tribunal notes the evidence submitted by the applicant that she last held a substantive visa in May 1987.  As the applicant applied for the visa whilst in Australia, and she did not hold a substantive visa on the date of application of 18 March 2022, the applicant must satisfy the relevant Schedule 3 criteria, namely criterion 3002 that requires the application to have been lodged within 12 months after the relevant day.  The relevant day is the day the applicant last held a substantive visa. 

13. Given, on the applicant’s evidence, that she did not make her application until 18 March 2022, almost 35 years after the relevant day, she does not meet cl 151.211(b).

14. The applicant does not meet cl 151.211 at the time of application.

15. In relation to the time of application requirements for cl 151.212, the Tribunal notes that the applicant must meet the definition of either a ‘long residence applicant’ or a ‘defence service applicant.’  

16. In relation to a ‘long residence applicant,’ an applicant is required, as stated at cl 151.111, to have:

    (a)spent the greater part of his or her life before the age of 18 in the migration zone as an Australian permanent resident; and

    (b)did not at any time acquire Australian citizenship; and

    (c)has maintained business, cultural or personal ties with Australia; and

    (d)has not turned 45 at the time of application.

17. The applicant has stated in her application that she was 72 years of age at the time of application and conceded that she has never been an Australian permanent resident.  Given the applicant was over 45 years of age at the time of application and has never been an Australian permanent resident, she therefore does not meet the definition of a ‘long residence applicant’ as per cl 151.111.

18. In relation to a ‘defence service applicant’ an applicant is required, as stated at cl 151.111, to:

    (a)have completed at least three months continuous Australian defence service; or

    (b)have been discharged before completing three months of Australian defence service because the applicant was medically unfit for service, or further service, and became medically unfit because of the applicant’s Australian defence service. 

19. ‘Defence service’ is classified as service before 19 January 1981 in the Australian Permanent Forces or National Service prior to 26 November 1964. 

20. The applicant in her application, and again in her submissions to the Tribunal, stated that she had not served in the Australian Armed Forces prior to January 1981.  The applicant subsequently does not meet the definition of a ‘defence service applicant’ as per cl 151.111.

21. The Tribunal finds that given the applicant did not meet the definition of either a ‘long residence applicant’ or a ‘defence service applicant’ as defined at cl 151.111, she subsequently does not meet cl 151.212 at the time of application. 

22. As the applicant does not meet cl 151.211 or cl 151.212 of Part 151 of Schedule 2 of the Regulations at the time of application, the Tribunal finds the applicant does not meet the criteria for the grant of the visa.

23. In both pre-hearing submissions and at the Tribunal’s hearing, the applicant stated the purpose for lodging the primary application, and the application under review to the Tribunal, is to obtain a decision which gains access to the Minister’s powers under s 351 of the Act.  

24. The Minister has powers under s 351 of the Act to replace a decision of the Tribunal in a case with a decision that is more favourable to that person if the Minister thinks it is in the public interest to do so.

25. The applicant requested the Tribunal consider referring her matter to the Department for consideration for referral to the Minister. 

26. The Tribunal invited the applicant, and her two witnesses, to make submissions as to why the Tribunal should support a referral of her matter to the Minister under s 351. The applicant notes the applicant has made previous submissions on this matter to both the delegate and the Tribunal pre-hearing.

27. The Tribunal questioned the applicant concerning her failure to regularise her migration status over such a significant period of time – well over three decades.  The applicant stated that she had heard rumours in 1987 that an amnesty on those overstaying was put in place around the time of Australia’s Bicentenary in 1988. The applicant furthermore stated that she was 35 years of age at the time, and was concerned that she may face difficulties under Australia’s points immigration system at the time if she departed Australia and attempted to make a new application to return. 

28. The Tribunal is not satisfied that the applicant’s arguments concerning her mistaken belief in the late 1980s that a migration amnesty may have occurred – or her concerns about being unable to meet Australia’s immigration requirements should she return to Great Britain and lodge a new application – are reasons to support the referral of the applicant’s matter to the Minister under s 351.  The Tribunal notes that it is incumbent upon a non-citizen in Australia to keep themselves aware and informed of their migration status.  They have an obligation to ensure they remain lawful. The Tribunal notes the applicant concedes that she was never comfortable with her migration status.  In the Tribunal’s view, the applicant was clearly aware of her unlawful status and she simply chose to ignore the law to remain in Australia over many decades.  The concerns that she may not meet the points system should she wish to return do not mitigate the failure to meet her obligations as a non-citizen who was provided the opportunity to live in the Australian community.  Whilst at some point the applicant may have believed there was an migration amnesty around the time of Australia’s bicentenary, there is no evidence she took any action to seek any information on this from the Department who could have provided her with the correct information.  The applicant claims she attempted to rectify her situation on many occasions.  The Tribunal gives such claims limited weight. The Tribunal does not consider the applicant’s submissions concerning a mistaken belief of a migration amnesty, or her concerns as to meeting Australia’s migration requirements in a new application, are any reason to support an application today for Ministerial intervention.

29. The applicant has submitted there are four unique or exceptional circumstances in the Minister’s Guidelines that support the referral by the Tribunal of the applicant’s matter to the Department for consideration of referral to the Minister.  These are:

    ·Compassionate circumstances regarding the applicant’s age that if not recognised would result in serious ongoing and irreversible harm and continuing hardship;

    ·Her length of residence in Australia since 1986;

    ·Her integration into the Australian community; and

    ·Exceptional economic, scientific, cultural or other benefits that would result from her being permitted to remain in Australia.

30. The Tribunal invited the applicant at its hearing to make submissions on these matters.  In relation to compassionate circumstances regarding her age that if not recognised would result in serious ongoing and irreversible harm and continuing hardship; the applicant discussed her age and her lack of any family in Great Britain.  The applicant spoke of her friends in Australia as being her family, a submission supported by her two witnesses.  The applicant discussed the hardship she would face at re-establishing herself in Great Britain after almost 40 years away.  

31. The Tribunal has some sympathy for the applicant in her submissions.  The Tribunal accepts the applicant has no family in Great Britain and returning after such a lengthy period of time represents a genuine and significant hardship to an individual now aged 74 years of age.  The Tribunal accepts that the applicant’s friends in Australia are a de facto family unit for her, and separation would cause her hardship.  The Tribunal accepts the applicant’s friends provide her with particularly important and invaluable ongoing care and support.  The Tribunal notes the applicant has her own superannuation and is financially independent, but accepts the applicant would find it exceedingly difficult at her age to acquire employment in Great Britain should she need to do so.

32. The Tribunal accepts in the circumstances there are compassionate circumstances regarding the applicant’s age that if not recognised would result in serious ongoing and irreversible harm and continuing hardship should she depart Australia.  The Tribunal is prepared to support referral on this basis. 

33. In relation to the two separate submissions of the length of the applicant’s residence in Australia since 1986 and her integration into the Australian community, the Tribunal accepts the evidence that the applicant has been a positive contributor to the economy since her arrival.  She has established successful businesses in the corporate promotions business.  She has been a taxpayer for several decades prior to ceasing her operation of these endeavours as part of her visa application process.  The applicant’s witnesses Ms Scanlon and Ms Flood each discussed the applicant’s contributions to her local community.  The Tribunal accepts the applicant has integrated into the Australian community since 1986, is an active and positive contributor to her local community, and since 1986 has made a positive contribution as a worker and taxpayer.  Whilst not condoning her failure to regularise her migration status over many years, the Tribunal does accept the submissions that the considerable length of the applicant’s residence in Australia and her integration into the Australian community as a taxpayer, a volunteer and an active and contributing member of the community support the request for referral to the Department for consideration of referral to the Minister.        

34. The Tribunal notes the claims that there are exceptional economic, scientific, cultural or other benefits that would result from her being permitted to remain in Australia, and these support the request for referral to the Department for consideration of referral to the Minister.  The Tribunal accepts the applicant has been a successful business operator through her corporate merchandising business and has been a taxpayer and contributor to the Australian economy and her community.  The Tribunal does not however, with respect, consider these activities and endeavours represent exceptional economic, scientific, cultural or other benefits to the Australian Commonwealth.  The Tribunal does not support the request for a referral on this basis.

35. The Tribunal has carefully considered the applicant’s circumstances, and the claims she has made in relation to her personal circumstances as well as the background to her lodging her visa application. 

36. The Tribunal considers on the evidence there are compassionate circumstances regarding the applicant’s age that if not recognised would result in serious ongoing and irreversible harm and continuing hardship. The Tribunal furthermore notes the length of the applicant’s residence in Australia since 1986, her integration into the Australian community, and her contribution to the Australian community during this period.

37. Having regard to the applicant’s circumstances, and having considered the Ministerial guidelines relating to the Minister’s discretionary power under s 351, set out in the Department’s Procedures Advice Manual (PAM3), the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.     

    DECISION

38. The Tribunal affirms the decision not to grant the visa applicant a Special Eligibility (Class CB) visa.

    Justin Owen
    Deputy President