Langer (Migration)

This matter concerned an application for a Subclass 155 (Five Year Resident Return) visa by a New Zealand citizen who had arrived in Australia on a Special Category visa. The applicant sought to establish eligibility as a "former Australian permanent resident" under clause 155.211(c) of the Migration Regulations 1994 (Cth). The core dispute revolved around whether the applicant's prior visit to Australia as an exempt non-citizen for a holiday constituted a period of permanent residency, given the legislative ambiguity surrounding the definition of "exempt non-citizen" and departmental policy that residence requires more than a temporary visit. The decision was made by Deputy President Justin Owen of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the applicant met the criteria for a Subclass 155 visa, specifically clause 155.211, which outlines the requirements for an applicant to be an Australian permanent resident, a former Australian permanent resident, or a former Australian citizen. The central legal issue was whether the applicant's historical presence in Australia, evidenced by an incoming passenger card from 1972 indicating a visit for a holiday with an intention to stay for five months and return to New Zealand, qualified her as a "former Australian permanent resident" for the purposes of the visa application.

The Tribunal reasoned that to be considered a former permanent resident, a person must have been recognised as such under the relevant migration legislation at the time they were granted permission to settle permanently in Australia, and this status must have been subsequently lost, other than through visa cancellation. The delegate had previously found that the applicant, arriving in 2002 as a temporary visa holder on a Special Category visa, had not provided evidence of being granted an Australian permanent visa or being a former Australian permanent resident. While the applicant later provided passenger cards from 1972 showing a visit for a holiday with an intention to stay for five months and return to New Zealand, the Tribunal found this did not demonstrate permanent residency. The Tribunal noted the applicant's age at the time of that visit and the stated intention to return to New Zealand, concluding that this period did not establish her as a former Australian permanent resident. Consequently, the Tribunal affirmed the decision not to grant the visa.