McMillan (Migration)

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.