McMillan (Migration)
[2024] AATA 3713
•25 September 2024
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, 151.212CASES
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 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.
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:
Arrived
Departed
Days
2 August 1990
20 April 1992
628
28 August 1993
9 March 1998
1,655
4 May 1998
25 November 1999
571
21 January 2000
17 November 2000
302
31 January 2001
9 February 2002
Note: only to 23 May 2001 counts
113
Total days in Australia before turned 18:
3,269
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.
The Tribunal considers the term ‘in the migration zone’ to be a clear and uncontroversial expression of the Parliament’s intention in relation to determining eligibility to be a long residence applicant for a Former Resident visa. The Tribunal is not persuaded, despite the considerable efforts of the representative, that it can reasonably interpret travel overseas as a minor as constructively being time ‘in the migration zone’ for the purposes of an applicant being eligible to be a long residence applicant for a Former Resident visa.
While the Tribunal has considerable empathy for the circumstances the applicant presently finds himself in, this empathy does not allow the Tribunal, through interpretation, to rewrite the clear words of the Parliament or to import an intent and effect to those words that it is not obvious to the Tribunal exists.
As 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 Tribunal finds that the applicant is not a long residence applicant for the Former Resident visa.
As the applicant has not served in the Australian defence service the Tribunal finds that the applicant is not a defence service applicant for the Former Resident visa.
Therefore, the Tribunal finds that the applicant does not meet cl 151.212 of Schedule 2 to the Regulations because he is neither a long residence applicant or a defence service applicant for the Former Resident visa.
Given these findings, the decision under review must be affirmed.
Other matters: Request to refer the visa application to the Minister
The applicant and representative requested that the applicant’s visa application be referred by the Tribunal to the Minister for the Minister to consider exercising the Minister’s power under s 351 of the Act to intervene and substitute a decision that is more favourable to the applicant.
The Tribunal has actively considered the request to ‘refer’ the visa application to the Minister for consideration of the Minister exercising the Minister’s power under s 351 of the Act.
Section 351 of the Act states:
(1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
…
(3)The power under subsection (1) may only be exercised by the Minister personally.
…
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
The power in s 351 is a power that is personal to the Minister and cannot be delegated. The Minister also does not have a duty to consider whether to exercise this power or not.
There is no formal power for the Tribunal to refer matters to the Minister for the Minister to consider exercising the power in s 351 because of the non-compellable nature of the Minister’s power. However, over time an informal practice has emerged where the Tribunal has made such ‘referrals’. These are not ‘referrals’ in any legal or formal sense but are often sought by applicants presumably because they hope if the Tribunal makes a ‘referral’ in a particular case then it may have a greater chance of actually being brought to the Minister’s attention. Whether this is the case is a moot point and in any event an applicant can directly seek that the Minister exercise the Minister’s power under s 351 in their application, irrespective of whether the Tribunal makes such a ‘referral’ or not.
In 2016 the Minister issued guidelines known as the 2016 Ministerial Instructions to the Department on which applications for the Minister to exercise the power under s 351 (and other intervention powers) should and should not be brought to the attention of the Minister. In Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 the High Court of Australia on 12 April 2023 found the Department’s administration of these guidelines breached the Minister’s non-delegable statutory powers to decide procedurally whether to consider an application and where the Minister chose to consider an application to decide substantially whether to substitute a more favourable decision or not.
While the administration of the 2016 Ministerial Instructions by the Department has been ruled as unlawful by the High Court of Australia, the 2016 Ministerial Instructions still provide valuable guidance on when the Minister may choose to make either the procedural or substantive decision referred to above. The 2016 Ministerial Instructions require that there must be unique or exceptional circumstances to establish that it is in the public interest for the Minister to intervene.
The Ministerial Instructions are not a statement of law but do make it clear that the Minister exercising the power under s 351 of the Act is not part of the visa process and so the Tribunal as presently constituted does not make such ‘referrals’ lightly. It is important to note again though, that even if the Tribunal does not refer a matter to the Minister to consider the exercise of the Minister’s power under s 351, an applicant can apply to the Minister directly requesting the Minister consider the exercise of the power in s 351 of the Act in the applicant’s circumstances.
The Tribunal summarises the applicant’s relevant circumstances as set out below. The Tribunal found the applicant, Ms Ling and Mrs Marshall each gave their evidence spontaneously, candidly and without effect or exaggeration. They were each impressive witnesses in their own right and the emotion evident in the Tribunal hearing room confirmed for the Tribunal the significance of the likely impact on each of them if the applicant has to depart Australia.
The applicant’s mother, Mrs Marshall, explained to the Tribunal that the applicant is one of her four children, being one of twin boys with his brother John and with two younger sisters, Laura and Gemma.
Mrs Marshall told the Tribunal she separated from the applicant’s father when the applicant was two and then remarried in 1987, arriving in Australia in 1990 and is now an Australian citizen. Mrs Marshall’s evidence is she was keen for the applicant to maintain a positive relationship with his biological father and so when the applicant was under 18 years of age, she encouraged the applicant to return to the United Kingdom to see his father. The applicant did return to the United Kingdom several times during his childhood, including for over two months at the end of 1999 and for over 10 weeks at the end of 2000. Mrs Marshall noted that if she had not sent her son, the applicant, back to the United Kingdom to visit his father then the applicant would have qualified for the Former Resident visa. The Tribunal notes that it was evident this weighs heavily on Mrs Marshall. Mrs Marshall told the Tribunal the applicant’s father died in 2008.
The applicant confirmed to the Tribunal that:
·He has two daughters from a previous relationship and they are aged 9 and 14;
·His daughters live in Scotland with their mother and step-father;
·His own mother and step-father live in Australia;
·His sisters both live in Australia;
·At the time of application for the visa he worked as a sales manager;
·Since August 2023 he has held Bridging visas with a condition attached restricting his right to work in Australia; and
·Since November 2023 he has held a Bridging B visa.
The applicant told the Tribunal that he met Ms Ling in December 2023, they committed to each other as a couple to the exclusion of all others in February 2024 and they moved in together into a property owned by Ms Ling (subject to a mortgage) in Doreen in July 2024. Ms Ling is married but separated from her husband and has six- and three-year-old boys who she shares custody of with her husband. Ms Ling told the Tribunal that she and her husband own multiple properties, subject to financial obligations, and are in the process of reaching a financial settlement in relation to their communal property and then intend to apply to for a divorce and the dissolution of their marriage.
Ms Ling told the Tribunal she is an Australian citizen, is in full-time employment and explained the role the applicant plays in her life and in the lives of her boys. Ms Ling spoke passionately about the impact it would have on each of them, including Ms Ling, if the applicant had to depart Australia. Ms Ling told the Tribunal she and the applicant have been inseparable since they met, her boys adore the applicant, the applicant and Ms Ling have similar goals and shared plans for the future and Ms Ling now cannot imagine life without the applicant.
Ms Ling also explained to the Tribunal, given the presence of the boys’ biological father in Australia, she cannot just choose to follow the applicant back to Scotland if the applicant has to depart Australia. The applicant told the Tribunal he would not expect Ms Ling and the boys to accompany him back to the United Kingdom if that meant separating the boys from their father, even if that were allowed.
The applicant told the Tribunal he does not have working rights in Australia but derives income from a resin surfacing business he has an interest in that is operated by his brother in Scotland. The applicant also responded to publicly available information disclosed to him by the Tribunal that he had been involved as a director, with his brother, in Scotland in five companies between approximately 2011 and 2018 that had been wound up or deregistered:
·Horizon Renewable Energy Ltd – a company incorporated on 23 June 2011 that was wound up on 10 July 2018;
·Ewemove Hamilton & Larkhall Ltd – a company incorporated on 22 January 2015 that was struck off the register of companies on 7 March 2017;
·Maintenance 4 You Ltd – a company incorporated on 2 March 2015 that was struck off the register of companies on 15 August 2017;
·Horizon Property Developments Ltd – a company incorporated on 29 August 2012 that was struck off the register of companies on 20 February 2018; and
·TH Group UK Ltd – a company incorporated on 27 January 2014 that was struck off the register of companies on 31 July 2018.
The applicant acknowledged these corporate failures and told the Tribunal the main company was Horizon Renewable Energy which failed in part because of shifts in Government renewable energy policies, leaving debts of 400,000 pounds and resulting in the bankruptcy of both the applicant and his brother John. The applicant told the Tribunal he was not banned from being a director of a company and no criminal charges were filed. The applicant’s evidence, which has not been checked by the Tribunal, is that he has not ever been charged with or convicted of a criminal offence either in Australia or overseas.
The applicant told the Tribunal that apart from his brother John, his mother has all of her children with her in Australia and that he is very close to his mother to whom he speaks on a daily basis. The applicant also told the Tribunal about his close relationship with his sisters and their husbands, with Laura living in Queensland and Gemma living in the same suburb of Melbourne as their mother.
The applicant told the Tribunal that Gemma married her husband in Scotland in August 2024 and he and Ms Ling, along with the rest of the family including the applicant’s daughters, attended the wedding. The applicant also told the Tribunal he and Ms Ling had also travelled to Queensland to meet his sister Laura and her husband.
The applicant, Ms Ling and Mrs Marshall each described in detail the adverse impacts they would experience if the applicant had to depart Australia. Whilst the applicant’s sisters were not present in the Tribunal the applicant and Mrs Marshall consistently described how close the siblings are.
The applicant told the Tribunal he contributes to the financial cost of raising his daughters in Scotland, is in regular communication with them, owes no child support and has no other financial arrears in relation to his daughters.
The applicant told the Tribunal he has not had a visa cancelled, been found to be in breach of a condition of a visa he has held or over-stayed in Australia as an unlawful non-citizen.
The applicant also explained the background to how he came to apply for Former Resident visa rather than pursuing other visa pathways which appeared open to him. The applicant explained that his sister Gemma had used an RMA to assist her to migrate to Australia and when it came time for the applicant to seek to resuscitate his permanent residency in Australia Gemma enquired with the RMA’s office as to what would be the best option for the applicant. The Office Manager from the RMA’s office, who Gemma dealt with during her successful visa application, emailed Gemma stating the best option would be if the applicant could prove “he was PR for 10 years before turning age 18” and he “will need to establish exactly when he became PR and exactly when he left”. The Office Manager provided a hyperlink to the section of the Department’s internet website that explains who is eligible to apply for a Former Resident visa and what that visa entitles its holder to do.
The applicant provided the Tribunal with a copy of emails between Gemma and the RMA’s office confirming the Office Manager’s advice to Gemma about the applicant. The Tribunal accepts this evidence.
The representative submitted relation to these circumstances in an email to the Tribunal date stamped 18 September 2024 9:39 PM (errors in the original):
There is no evidence the Office Manager, [name deleted], was registered to give advice. There is no evidence she is a registered agent today. As I understand she has retired. The advice she gave was negligent as the resident return visa subclass 155 was the most appropriate visa in his circumstances. [The applicant] proceeded to apply for a subclass 151 when he clearly did not meet the requirements on a strict and literal reading of the phrase ’migration zone’ which under policy is preceded by the qualification that an applicant must be physically in the migration zone for at least 9 years prior to reaching 18 years. Furthermore, the review applicant was referred to the Department’s website which is considered an authoritative Government site. The criteria for this visa make no mention of the migration zone but only uses the term Australian permanent resident. The site is misleading, and my client has spent about $7,500 and a considerable time in Australia without work rights ( for which he could have applied for) and without Medicare for which he was eligible.
Due to factors beyond his control, he was financially prejudiced by the conduct of his negligent adviser and misled by the Department’s website. These factors, inter alia, should be considered in the exercise of your discretion whether or not to refer to the Minister for the exercise of his powers under s351 of the Migration Act 1958 (‘the Act’). It is settled law that while one circumstance in itself may individually not be considered exceptional the totality of circumstances cumulatively could constitute exceptional circumstances for referral under the now, impugned, Guidelines.
While it is true he is eligible to apply for a subclass 820 onshore, he is subject to Schedule 3 provisions and also requiring to demonstrate compelling and compassionate circumstances why a visa should be granted onshore when the cohabitation period is less than 12 months as in his situation. It is open to the Minister to grant a substituted 600 visa to allow the applicant to apply for a partner visa so as to avoid Schedule 3 at least.
The Tribunal has considered the applicant’s circumstances. The Tribunal has formed the view that the applicant’s circumstances are unique or exceptional in the manner envisaged by the Ministerial Instructions and therefore has decided to refer the applicant’s circumstances to the Minister for the Minister to consider the exercise of the Minister’s powers under s 351 of the Act because:
·The applicant has missed being a long residence applicant by only 19 days. The applicant spent 3,269 of the required 3,288 days as a permanent resident in the Australian migration zone during the relevant period. This means the applicant spent 99.4 per cent of the required time in Australia during the relevant period;
·The applicant meets the remaining requirements to be a long residence applicant for the Resident Return visa because the applicant:
oHas not acquired Australian citizenship;
oHas maintained personal ties with Australia through his Australian citizen mother, Mrs Marshall, his two sisters Laura and Gemma and their families and now through his Australian citizen de facto partner Ms Ling and her two children;
oHad not turned 45 at the time of application for the visa;
·When the applicant departed Australia during the relevant period, he was a minor and his travel occurred when he was under the care and direction of his mother;
·The applicant relied on clearly erroneous advice from the office of an RMA when applying for the Former Resident visa;
·The applicant had other visa pathways open to him at the time of application, which are arguably not available to him after this decision, and if he had received competent immigration advice it would likely have resulted in the applicant’s permanent residency being reinstated to him;
·The applicant does not have a Partner visa pathway open to him at this time given the recency of his relationship with Ms Ling who is still married to her husband; and
·Ms Ling, her two children and the applicant’s mother are all Australian citizens who the Tribunal is satisfied will be significantly and materially detrimentally affected if the applicant has to depart Australia.
Given the relative recency of the applicant’s relationship with Ms Ling the Tribunal does not have sufficient information before it to find, and does not find, that the applicant’s departure from Australia would result in serious, ongoing and irreversible harm or continuing hardship to an Australian citizen or Australian family unit. However, the Tribunal’s view remains the applicant’s circumstances are sufficiently unique or exceptional to warrant this referral.
The Tribunal encourages the applicant to provide additional information directly to the Minister in support of the Tribunal’s referral of the applicant’s circumstances to the Minister.
DECISION
The Tribunal affirms the decision not to grant the applicant a Special Eligibility (Class CB) Former Resident (Subclass 151) visa.
Michael Ison
Senior Member
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