Langer (Migration)

[2024] AATA 864

Langer (Migration) [2024] AATA 864 (18 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Helen Flora Langer

CASE NUMBER:  2012407

HOME AFFAIRS REFERENCE(S):          BCC2020/1659788

MEMBER:Deputy President Justin Owen

DATE:18 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.

Statement made on 18 April 2024 at 8:45am

CATCHWORDS

MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – former Australian permanent resident – New Zealand citizen arrived on Special Category visa – not permanent visa – previous visit for holiday as exempt non-citizen under Trans-Tasman travel arrangement – legal uncertainty about residency status – legislation did not define ‘exempt non-citizen’ – departmental policy – residence requires more than temporary visit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 155.211(c)

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 14 July 2020 to refuse to grant the visa applicant (the applicant) a Return (Residence) (Class BB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 June 2020. At the time of application, Class BB contained two subclasses – Subclass 155 (Five Year Resident Return) and Subclass 157 (Three Month Resident Return). In this case, claims have been advanced in respect of Subclass 155. The criteria for a Subclass 155 visa are set out in Part 155 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 155.211.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl 155.211 because the applicant had not demonstrated evidence that they had been granted an Australian permanent visa; were an Australian citizen who had subsequently lost or renounced Australian citizenship; or evidence that they were a former Australian permanent resident, other than a former Australian permanent resident whose most recent permanent visa was cancelled.   

4. The applicant appeared before the Tribunal via videoconference on 9 April 2024 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The primary issue in this case is whether the applicant can be considered an 'former Australian permanent resident’ for the purposes of meeting cl 155.211(c) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

   Does the applicant meet the residency/citizenship requirement?

7. Clause 155.211 requires that at the time of application the applicant either:

   a)is an Australian permanent resident; or

   b)was an Australian citizen but has subsequently lost or renounced Australian citizenship; or

   c)is a former Australian permanent resident, other than a former Australian permanent resident whose most recent permanent visa was cancelled.

8. As the delegate noted in their decision record, to be eligible for a 155 Resident Return Visa, an applicant does not have to be an Australian permanent resident at the time of application. Provided they have been a permanent resident in the past, and their most recently held permanent visa was not cancelled, they can satisfy cl 155.211

9. As the delegate noted, policy supports the position that a former permanent resident includes any person who was recognised as a permanent resident of Australia within the context of the relevant migration legislation that applied when official permission was first given to them to settle permanently in Australia, but who has subsequently lost that status (other than through visa cancellation).

10. The delegate further noted that New Zealand citizens who hold a Special Category (subclass 444) visa will not be eligible for a Resident Return Visa unless they are a former permanent resident, that is, they either:

    ● were granted an Australian permanent visa or

    ● were resident in Australia prior to 1 September 1994 as an exempt non-citizen or the holder of a permanent entry permit.

11. In making their decision, the Department reviewed international movement records database and found that the applicant’s first date of arrival in Australia was a Special Category visa (subclass 444) visa holder was on 11 April 2002 as a temporary visa holder on their New Zealand passport.

12. On this basis, the delegate found the applicant had not demonstrated evidence that she had been:

    a)granted an Australian permanent visa;

    b)was an Australian citizen but had subsequently lost or renounced Australian citizen;

    c)or there was evidence that the applicant was a former Australian permanent resident, other than a former Australian permanent resident whose most recent permanent visa was cancelled.

13. For these reasons, the delegate refused the applicant’s application, finding she did not meet the requirements of clause 155.211.

14. After the refusal of her visa, the applicant contacted the National Archives of Australia and secured incoming passenger cards from 12 November 1972, as well as her outgoing passenger card indicating she departed Australia on 12 March 1973.  These cards, submitted to the Tribunal by the applicant, demonstrate that the applicant in fact travelled to Australia at this time for the purpose (according to the filled out card) of a ‘Holiday’.  The incoming card stated the applicant intended to live in Australia for 5 months. In response to the question ‘Country where I next intend to stay for 12 months or more’ the applicant answered New Zealand.  The applicant listed her usual occupation as student.  The Tribunal notes the applicant was 19 years of age at the time this passenger card was completed. 

15. The Tribunal accepts on this basis that the applicant first travelled to Australia not in 2002 as the delegate found, but rather in November 1972.  At the Tribunal’s hearing the applicant stated she also furthermore also visited Western Australia in 1987 for the America’s Cup contest. Whilst there is no evidence as such concerning the 1987 visit before the Tribunal, the Tribunal considers the applicant was being truthful on this matter.

16. At the Tribunal’s hearing the applicant explained she has been in Australia continually most recently since around 2011.  She explained during this period she has bought businesses and invested in Australia.  These businesses have included the management rights to a holiday apartment complex in Mooloolabah; a health food franchise in Noosa Heads; and most recently a 52-apartment holiday complex in Alexandra Headland which she manages.  The applicant explained she is divorced but two of her 3 New Zealand citizen sons also live on the Sunshine Coast and assist in the management of the Alexandra Headland property.  The Tribunal accepts the applicant has been a productive and diligent contributor to the tourism and hospitality industry whilst she has lived in Queensland. 

17. The applicant stated at the Tribunal’s hearing she has never been an Australian citizen.  The Tribunal explained to the applicant that the Special Category (subclass 444) visa she holds is not a permanent visa.  The applicant stated this meant she had never been granted an Australian permanent visa.  The applicant subsequently does not meet either cl 155.211(a) or cl 155.211(b).

18. In such circumstances, as the Tribunal explained at the hearing to the applicant, the Tribunal needed to consider whether the applicant could be considered a 'former Australian permanent resident’ for the purposes of meeting cl 155.211(c) of the Regulations on account of her 5-month visit to Australia in 1972.

19. The Tribunal notes the term ‘former Australian permanent resident’ is not expressly defined by the Regulations; however, the term ‘Australian permanent resident’ is defined in reg 1.03 to mean ‘a non-citizen who is the holder of a permanent visa’.

20. It is the Tribunal’s understanding that prior to 1 September 1994, New Zealand citizens were able to reside and work in Australia under the Trans-Tasman travel arrangement and were considered to be ‘exempt non-citizens’ under s 4 of the Act as it then applied, meaning they did not require and were not granted a visa (or entry permit as they were then known) on arrival. 

21. Whilst the law may remain somewhat opaque about the residency status granted to New Zealand citizens who entered Australia prior to 1 September 1994, it would appear to the Tribunal that the Act did not define the term ‘exempt non-citizen’ further at that time.

22. In such unusual circumstances, the Tribunal has considered it prudent to refer to Departmental policy for guidance in determining whether the applicant may be a ‘former permanent resident.’

23. Policy states that New Zealand citizens who hold a Special Category visa (TY-444) will not be eligible for a Resident Return Visa unless they are a former permanent resident, that is, they either:

    •          were granted an Australian permanent visa or

    •were resident in Australia prior to 1 September 1994 as an exempt non-citizen or the  holder of a permanent entry permit.

24. The Tribunal finds the applicant was not granted an Australian permanent visa. 

25. The question then becomes were they resident in Australia prior to 1 September 1994 as an exempt non-citizen or the holder of a permanent entry permit

26. In review of policy, the Tribunal considers the words ‘were resident in Australia’ implies that what is required is more than just a temporary visit, rather an applicant needed to have resided here, which on its plain language meaning may suggest that the applicant needed to either dwell permanently or for a considerable length of time in Australia. In oral evidence to the Tribunal’s hearing the applicant stated that she had studied for one year in New Zealand at Canterbury University when she decided to travel to Australia.  She stated in oral evidence that she ‘considered’ transferring to Melbourne University in Victoria.  She explains she stayed for up to 5 months (as flagged originally in her incoming passenger card), visited the student faculty to enquire about studying, but ultimately she departed for California in 1973 via New Zealand. The Tribunal notes that the outgoing passenger card she provided it indicates she departed Australia in 1973 about 4 months after her arrival.   

27. The Tribunal cannot in these circumstances consider the applicant ‘were resident in Australia’ during the approximately 4 months she was in Australia for the purposes of this visa.  The Tribunal notes her Passenger Card specifically states she was visiting Australia on a holiday for 5 months and would be spending the next 12 months in New Zealand.  Whilst she may have made some rudimentary enquiries into studying at Melbourne University whilst on holiday, the Tribunal does not read such actions and activity as indicating the applicant was ‘resident in Australia’. 

28. The Tribunal furthermore notes that Departmental policy hasn’t used words which may suggest a lower threshold to be considered to be ‘resident in Australia’, such as ‘entered Australia’.

29. On the evidence provided, the Tribunal finds it is not satisfied that the applicant’s first period in Australia in November 1972, when she declared she travelled to Australia as a student to holiday or visit for five months can be considered an intention to take up residence in Australia or that she was resident in Australia. The Tribunal notes, on her passenger entry card the applicant did not to tick the box to indicate that she intended to permanently reside here.  She selected the box indicating she was here on a holiday and would be spending the next 12 months in New Zealand. The applicant stated at the Tribunal’s hearing she did in fact depart Australia after 4 to 5 months, returning to New Zealand and then travelling to the United States. The applicant’s subsequent movements – where she stated she did not return again to Australia for another 15 years to briefly attend the America’s Cup before again departing for a further 15 years all firmly suggests to the Tribunal that the applicant had no intention of becoming a ‘permanent resident’ of Australia at those times. 

30. The Tribunal subsequently finds the applicant is not a ‘former permanent resident’.  The Tribunal finds the applicant was not resident in Australia prior to 1 September 1994 as an exempt non-citizen or the holder of a permanent entry permit.

31. Accordingly, the applicant does not meet cl 155.211(c).

32. The applicant does not meet cl 155.211.

33. For the reasons above, the Tribunal finds the visa applicant does not meet the criteria for the grant of a Subclass 155 visa.

34. For the same reasons discussed above concerning residency and citizenship, the applicant furthermore does not meet the criteria for a Resident return (Class BB) Subclass 157 visa.  The Tribunal finds the applicant does not meet cl 157.211.    

    DECISION

35. The Tribunal affirms the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.

    Justin Owen
    Deputy President