McMillan (Migration) - [2024] AATA 3713

McMillan (Migration) [2024] AATA 3713 (25 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gary Lennox McMillan
REPRESENTATIVE:  Mr Joseph Italiano, Joseph Italiano & Associates
CASE NUMBER:  2312971
HOME AFFAIRS REFERENCE(S):          BCC2023/3774945

MEMBER:Michael Ison
DATE:25 September 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Special Eligibility (Class CB) Former Resident (Subclass 151) visa.

Statement made on 25 September 2024 at 9:51am
CATCHWORDS
MIGRATION – Special Eligibility (Class CB) visa – Subclass 151 (Former Resident) – long residence applicant – greater part of the applicant’s life before the age of 18 as an Australian permanent resident – referral for Ministerial Intervention – overseas visits to father – impact on Australian citizen children – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cl 151.111, 151.212
CASES
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 August 2023 to refuse to grant the visa applicant a Special Eligibility (Class CB) (Subclass 151) Resident Return visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant in this review is Mr Gary McMillan who was born in Scotland and is a 41-year-old national of the United Kingdom. Mr McMillan is referred to as the applicant in these reasons for decision.
The applicant applied for the Resident Return visa on 29 June 2023. Clause 151.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) provides:
The applicant is a long residence applicant or a defence service applicant.
In cl 151.111 a long residence applicant is defined as follows:
long residence applicant means an applicant who satisfies the Minister that he or she:
(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.
The applicant does not claim to, and there is no evidence before the Tribunal to indicate that he has, served in the Australian defence service.
The primary decision
The delegate of the Minister refused to grant the visa because the delegate found the applicant was in Australia for a total of 3,270 days in the first 18 years of his life between his birth on [date deleted] May 1983 and his 18^th birthday on [date deleted] May 2001 and this meant he had not spent the greater part of his life before the age of 18 in the migration zone as an Australian permanent resident.
The Tribunal hearing
The applicant appeared before the Tribunal on 11 September 2024 to give evidence and present arguments.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McMillan (Migration)

Details

AGLC: McMillan (Migration) [2024] AATA 3713
Case: [2024] AATA 3713
Decision Date: 25 September 2024

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse a Special Eligibility (Class CB) (Subclass 151) Resident Return visa. The applicant, Mr Gary McMillan, a national of the United Kingdom, sought the visa as a "long residence applicant" under the Migration Regulations 1994. The primary decision to refuse the visa was based on the delegate's finding that Mr McMillan had not spent the greater part of his life before the age of 18 in the migration zone as an Australian permanent resident, a key criterion for the visa.

The central legal issue before the Tribunal was to determine whether Mr McMillan met the definition of a "long residence applicant," specifically whether he had spent the greater part of his life before turning 18 in the migration zone as an Australian permanent resident. This involved interpreting the phrase "in the migration zone" within the context of the visa requirements and considering whether a liberal or strict interpretation was appropriate, particularly given the applicant's concession that he had not physically spent the majority of his pre-18 years in Australia.

The Tribunal considered the applicant's movement records, which indicated he had spent 3,270 days in Australia before his 18th birthday. To satisfy the "greater part of his life" requirement, he needed to have spent at least 3,288 days in the migration zone. The applicant conceded he did not meet this numerical threshold. His representative argued for a purposive interpretation of "in the migration zone," suggesting that temporary overseas visits to visit his father should not prejudice his eligibility, especially considering the visa's intent to benefit individuals with formative years and close ties to Australia. However, the Tribunal found that the applicant had not met the explicit requirement of spending the greater part of his life before the age of 18 in the migration zone as an Australian permanent resident.

The Tribunal concluded that the decision under review should be affirmed. The applicant had not satisfied the criterion of spending the greater part of his life before the age of 18 in the migration zone as an Australian permanent resident, and therefore did not qualify as a long residence applicant for the Subclass 151 visa.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 August 2023 to refuse to grant the visa applicant a Special Eligibility (Class CB) (Subclass 151) Resident Return visa under s 65 of the Migration Act 1958 (Cth) (the Act).Background The applicant in this review is Mr Gary McMillan who was born in Scotland and is a 41-year-old national of the United Kingdom. Mr McMillan is referred to as the applicant in these reasons for decision. The applicant applied for the Resident Return visa on 29 June 2023. Clause 151.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) provides:The applicant is a long residence applicant or a defence service applicant. In cl 151.111 a long residence applicant is defined as follows:long residence applicant means an applicant who satisfies the Minister that he or she: (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. The applicant does not claim to, and there is no evidence before the Tribunal to indicate that he has, served in the Australian defence service.The primary decision The delegate of the Minister refused to grant the visa because the delegate found the applicant was in Australia for a total of 3,270 days in the first 18 years of his life between his birth on [date deleted] May 1983 and his 18th birthday on [date deleted] May 2001 and this meant he had not spent the greater part of his life before the age of 18 in the migration zone as an Australian permanent resident.The Tribunal hearing The applicant appeared before the Tribunal on 11 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s de facto partner Ms Joanne Ling and from the applicant’s mother Mrs May Marshall. The applicant was represented in relation to the review by Mr Joseph Italiano of Joseph Italiano & Associates whose oral and written submissions were of assistance to the Tribunal in the conduct of this review, even though Mr Italiano was retained by the applicant only days before the Tribunal hearing. Mr Italiano is referred to as the representative in these reasons for decision. Pre-hearing submissions On 4 September 2024 the applicant provided the Tribunal with a copy of his Australian government movement records dated 28 August 2024. On 9 September 2024 the representative made a short submission to the Tribunal alerting the Tribunal to the possibility that if the decision under review is affirmed the applicant may seek that his application for the visa be referred to the Minister for the Minister to consider exercising the Minister’s power under s 351 of the Act.Post hearing submissions On 18 September 2024 the Tribunal received an email from the representative containing submissions in relation to the preferable interpretation of the term ‘in the migration zone’ to determine eligibility to be considered a long residence applicant for a Former Resident visa.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant spent the greater part of his life before the age of 18 in the migration zone as an Australian permanent resident. The Tribunal discussed this issue with the applicant and the representative during the Tribunal hearing, including handing each of them a printed copy of the information reproduced in paragraphs 17, 18 and 19 of these reasons for decision. It is not contested before the Tribunal that the applicant was a permanent resident of Australia at the relevant times before his 18th birthday. The applicant’s Australian government movement records state that the applicant has spent the following periods in the migration zone as an Australian permanent resident: Between the applicant’s date of birth and the day before the applicant turning 18 years of age there were 6,575 days (or 6,576 days if the day of the applicant’s 18th birthday is included). This means that in the applicant’s circumstances he must have spent at least 3,288 days in Australia’s migration zone as a permanent resident before he turned 18 years of age to meet the requirements of being a long residence applicant for the purposes of cl 151.212 of Schedule 2 to the Regulations. As the applicant has not spent at least 3,288 days in Australia’s migration zone between his birth and turning 18 years of age the Tribunal finds that the applicant has not spent the greater part of his life before the age of 18 in the migration zone as an Australian permanent resident. The applicant conceded during the Tribunal hearing that he had not spent the greater part of his life before the age of 18 in the migration zone as an Australian permanent resident. The applicant’s representative invited the Tribunal to interpret the term ‘migration zone’ used in the definition of a ‘long residence applicant’ in cl 151.111 of Schedule 2 to the Regulations purposefully in the following manner (errors and emphasis in the original):Given that the former resident visa is designed to benefit minors who have lived their formative years in Australia and still retain those close family ties a strict black letter interpretation of the term migration zone leads to unintended consequences and clearly contrary to the purpose of the legislation and an interpretation consistent with the purpose of this Regulation is to be preferred: section 15AA of Acts Interpretation Act 1901; Tatla by his litigation guardian Grewal Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 78; s21(5) of the Australian Citizenship Act 2007.It is inconceivable that a child who leaves Australia to visit his biological parent while ordinarily an Australian permanent resident and the holder of a permanent visa to enter and remain in Australia is so prejudiced through a strict black letter interpretation of the migration zone as that expression is used by the legislation. It is interesting that the statute can deem a person remains in the migration zone while outside Australia’s territorial waters or the migration zone. It is submitted there is no case law on this term in the migration visas regime apart from its usage for humanitarian, protection and refugee visa. Hence in the absence of judicial precedent on the interpretation of the term migration zone for this visa, reliance can be placed on extrinsic aids and explanatory memoranda and policy. There is no explanatory memorandum when this visa was inserted in the Regulations in November 2015. There is no policy on this term in PAM beyond insetting he word physical before the term migration zone. At best policy is only a guide and should not be applied inflexibly or slavishly and a decision maker should be free to deviate in the interests of the particular merits of the case. Furthermore, the legislators could have inserted the word physical in the relevant clause to put beyond doubt the intent of Parliament when all other beneficial legislation directed at minors runs counter to a strict black letter interpretation intended by policy.It is submitted having regard to the spirit of the visa regime and citizenship law directed at benefiting minors as in the instant case that a liberal and beneficial interpretation be adopted in interpreting the phrase being in the migration zone as an Australian permanent resident. A physical departure from the Migration Zone while the applicant holds a permanent visa has no effect on his ordinary or usual residence nor detract from his close ties or identification with Australia., While the applicant had physically left the migration zone albeit temporarily on occasions for very short periods, at all relevant stages he should be deemed to have been or constructively have been in the Migration Zone despite the lack of physical presence or in other words taken not to have left Australia; Tatia, supra; see also ss 5, 30(1) and 80 of the Act.

Decision

Reasons for decision

The applicant does not claim to, and there is no evidence before the Tribunal to indicate that he has, served in the Australian defence service.The primary decision The delegate of the Minister refused to grant the visa because the delegate found the applicant was in Australia for a total of 3,270 days in the first 18 years of his life between his birth on [date deleted] May 1983 and his 18th birthday on [date deleted] May 2001 and this meant he had not spent the greater part of his life before the age of 18 in the migration zone as an Australian permanent resident.The Tribunal hearing The applicant appeared before the Tribunal on 11 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s de facto partner Ms Joanne Ling and from the applicant’s mother Mrs May Marshall. The applicant was represented in relation to the review by Mr Joseph Italiano of Joseph Italiano & Associates whose oral and written submissions were of assistance to the Tribunal in the conduct of this review, even though Mr Italiano was retained by the applicant only days before the Tribunal hearing. Mr Italiano is referred to as the representative in these reasons for decision. Pre-hearing submissions On 4 September 2024 the applicant provided the Tribunal with a copy of his Australian government movement records dated 28 August 2024. On 9 September 2024 the representative made a short submission to the Tribunal alerting the Tribunal to the possibility that if the decision under review is affirmed the applicant may seek that his application for the visa be referred to the Minister for the Minister to consider exercising the Minister’s power under s 351 of the Act.Post hearing submissions On 18 September 2024 the Tribunal received an email from the representative containing submissions in relation to the preferable interpretation of the term ‘in the migration zone’ to determine eligibility to be considered a long residence applicant for a Former Resident visa. The representative’s email also forwarded emails between the applicant’s sister, Gemma, and the office of a registered migration agent (RMA) that Gemma used to obtain her visa to come to Australia. In those emails in November 2022 Gemma sought advice about what visa her brother, the applicant, should apply for to return to Australia to live. The emails were exchanged prior to the applicant applying for the Resident Return visa on 29 June 2023. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant spent the greater part of his life before the age of 18 in the migration zone as an Australian permanent resident. The Tribunal discussed this issue with the applicant and the representative during the Tribunal hearing, including handing each of them a printed copy of the information reproduced in paragraphs 17, 18 and 19 of these reasons for decision.

Ratio Decidendi

Legal Principle Established

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