Freestall (Migration)

This matter concerned an application for a Special Eligibility (Class CB) visa, subclass 151 (Former Resident), by a 74-year-old British national. The applicant had resided in Australia since November 1986 and last held a substantive visa on 22 May 1987, meaning she had been in Australia unlawfully for almost 35 years at the time of her application on 18 March 2022. During her period of unlawful residence, she had established and operated successful businesses and was financially self-sufficient through her superannuation and a British pension. The applicant had no immediate family in Great Britain and had not departed Australia since her arrival.

The primary legal issues before the Tribunal were whether the applicant met the criteria for the grant of the visa, specifically clauses 151.211 and 151.212 of the Migration Regulations 1994. Clause 151.211 requires an applicant to hold a substantive visa at the time of application, or if not, to satisfy Schedule 3 criteria, including lodging the application within 12 months of ceasing to hold a substantive visa. Clause 151.212 requires the applicant to be a "long resident applicant" or a "defence service applicant" as defined in clause 151.111.

The Tribunal found that the applicant did not meet the criteria for the visa. She conceded that she did not hold a substantive visa at the time of her application, thus failing clause 151.211(a). Furthermore, as she applied almost 35 years after her last substantive visa expired, she failed to meet the Schedule 3 criterion requiring application within 12 months, as stipulated in clause 151.211(b). The Tribunal also noted that the definition of a "long residence applicant" in clause 151.111 includes a requirement that the applicant has not turned 45 at the time of application, a criterion the 74-year-old applicant clearly did not meet.

Despite affirming the decision not to grant the visa, the Tribunal considered the applicant's circumstances, including her lengthy residence, contributions to the community through business, lack of family ties in Great Britain, and self-sufficiency. Having regard to these factors and the Ministerial guidelines for discretionary powers under section 351 of the Migration Act 1958, the Tribunal referred the case to the Department for consideration of referral to the Minister for potential intervention.