wondersparkle

I have applied for me and my family to migrate to Perth under Special Migration - Former Resident Category 18 October then discovered this forum and have been touched by the highs and lows of your experiences! I thought that I had mentally prepared myself for as many set backs in my own journey, as I could, except the DIMIA had a surprise up its sleeve for me!

A basic requirement is "you spent at least 9 of your first 18 years in Australia as a permanent resident". I received a letter yesterday that my visa has been refused as they calculate that I have spent 8 years and 11 months as a permanent resident. My circumstances are not particularly straight forward - whose are!

My father worked on contact in Papua New Guinea (a protectorate of Australia) for an Australian Company and I was sent to Boarding School in Queensland for four years I entered and departed Australia 26 times - they counted the days my feet were physically on Australian soil, yet we had a house in Australia and he was paid into Australian bank account. Calculation of these periods was difficult not knowing the formula that is used to calculate multiple entry and re-entry - every day is important to my meeting the criteria. Especially as I counted the period as being a permanent resident.

They have given leave to for my "australian citizen or permanent resident relative" (my father) to apply to a review tribunal - Has anyone experience of these tribunals? Is it worth it? Will they take in other circumstances into account? Are they flexible or do they stick to the letter of the law. I have checked the MRT website and can find only one similar case which was refused as the person only had 8 years residency.

I have so many unanswered questions swirling in my mind. I know some of my questions probably need to be answered by a lawyer specialising in this area (can anyone recommend one in Perth?) Is this just a case of "so close, yet so far away?".......

MrsDagboy

WS, do you mean that they only counted the time you were in Aust at boarding school, or while you were in PNG as well & it all added up to 8 years 11 months? When were you up there & where was your dad living? In Moresby or somewhere else?

Sounds a bit strange to me if they wont count your time in PNG, if thats what they are saying? My sister lived up there for about 13 years - her eldest daughter was born in Mt Hagen & had to apply for aust citizenship, but her younger sister was born in Moresby, so automatically was an aussie by birth. (they lived there from about 1963- 1976) .

Sorry I cant help with the actual query, one of the agents might be a bit more helpful, perhaps you may be better off posting it in Aus & NZ immigration forum?

banjo

sorry....have no knowledge on this. Maybe Allan Collette from Go Matilda would be able to help... We live in PNG for a while though. Mt Hagen. Where was your Dad working? I was there back in the early to mid '80's and went to the international primary school there.

Sorry I couldn't help you.

wondersparkle

Hi MrsDagboy and thanks for your advice. My rejection letter had 1 1/2 pages detailing my arrivals and departures which I assume they added up and concluded that I had spent 8 years 11 months on Australian soil. They rejected after 10 days of applying and had not enquired as to where/why etc., I had frequently left the country. This makes me think that to appeal is futile - as surely they would have done a little investigation first if they took vacations, for example, into account when calculating residency periods?

My dad worked on Bougainville Island, PNG and I was travelling back and forth to Charters Towers, Queensland from 6/79 to 10/83.

Thanks again for your advice!

MrsDagboy

WS, I think you'll find that the problem is that PNG was an independant country during the period your dad worked there (independence was Sept 16 1975). So everytime you got on that plane back to PNG, you were actually leaving the country.

Also from memory when reading some of the stuff on this forum, you are right - DIMIA don't take into account vacations when calculating residency periods.

My knowledge of visas is very weak however, perhaps one of the agents may be able to suggest something else.

Good luck

ausbird

i do feel for you. only one month and they have rejeted you. I also wanted to go under the special migration catagory but i am 1 year too old, even though i spent from ages 4 to 21 in australia. To old at 45. Dont give up i am not
I expect I will be going to a tribunal as well, so any advice would be good

diane

JAJ

DIMIA policy is to look at physical presence. MRT normally look to see if DIMIA have applied their own policies, in this case they appear to have done so (sometimes MRT is a lottery, but don't get your hopes up).

As noted, PNG was independent from 16 Sept 1975 so not a part of Australia. Even prior to that, the Territory of New Guinea had a different status legally compared to the Territory of Papua.

Have you looked to see if any other option exists. You say your father is in Australia, can he sponsor for skilled sponsored?

Jeremy

wondersparkle

Thanks Diane, I sure will keep you posted and I hope all goes smoothly for you - do you know whether has the age limit been waivered in other cases? That would be useful to know as it may show a bit of flexibility in the appeal process.

JAJ

'Flexibility' and 'DIMIA' are two words that generally don't go together.

There is zero flexibility on the age limit for Former Resident, unless you are an Australian defence forces veteran. The Regulations insist on this, and all MRT cases I've come across on this issue have been unsuccessful.

As for the 9 years in 18, where there is some flexibility in terms of policy interpreting the Regulations you may want to try the MRT. Some MRT members will apply DIMIA policy strictly, others may be more flexible in certain circumstances. For example:
http://www.austlii.edu.au/au/cases/c...2001/3081.html

No serious MRT applicant will try to do a DIY job - get professional assistance. And choose wisely, as you will need a top-class migration agent to handle a case like this.

Jeremy

JAJ

Access to Australian citizenship by virtue of connections with PNG pre 1975 depended on whether you were born in the Territory of Papua (an Australian external territory) or the Territory of New Guinea (a UN Trust Territory under Australian protection and administration).

The latter territory comprised the northern part of what's now PNG. Papua, including Port Moresby, is the southern part.

People born or naturalised in Papua who became PNG citizens in 1975 generally lost Australian citizenship. However those of foreign origin who did not become PNG citizens at independence (you needed to be 'indigenous' to become a PNG citizen) were allowed to hold on to their Australian citizenship.

Jeremy

wondersparkle

Thanks for your comments - I am about 6-9months away from completing a post-graduate diploma (Certified Institute of Personnel and Development) but had expected to be able to apply under former resident category so I dont know whether this falls under any skills category.

I had applied under Former Resident category in 1997/8 and although I didnt pursue the application, the Australian High Commission in London wrote "the secondary school certificates confirm that you were resident for the years 1981/2/3". Those certificates where from the period during which I was at boarding school - so they were prepared to accept them as proof of a years residency then ... now they are counting days - there's technology for you!

Rules are rules and I am more than happy to accept this decision if I know that I dont have a chance at tribunal - but if tribunals are able to apply some flexibility (especially when we are probably talking around 24 days short of the required amount of time over 18 years??).

I appreciate your guidance. I have trawled the MRT and Commonwealth Legal websites and have not found any cases reflecting this period short of requirement. The MIRIA Officer referred to "Procedures Advice Manual 3" (PAM 3) - are you aware if this is published on the the web? I am particularly interested how they calculate the period of residency when there have been multiple entry/exits (16 overseas trips in total from 1971-1984, 13 of those during 1980-1983).

Hope I haven't rambled too much or taken libertys - but I am sure that you have come across many a rambling raving reject once or twice in your career LOL!

JAJ

Impossible to say without knowing the full details. Also it may depend on whether you could go for skilled designated area sponsored.

Did you read the case I mentioned? That's one where the argument was successful, but there were other circumstances (and being honest - the applicant was downright lucky). The case however does not set a precedent.

I think you should contact an experienced professional to see what chance you might have at MRT, and take things from there. For a case like this, I wouldn't just choose any agent - two I'm aware of who could handle something like this are George Lombard or Peter Bollard. Let me know if you need contact details.

There is a short time limit to apply to MRT so you haven't got a day to waste.

Jeremy

wondersparkle

Yes I did read the case you mentioned but new to the forum, took me a few goes to word my post and we crossed in cyberspace.

Thanks for your advice - you have been the greatest help!

MrsDagboy

Exactly Jeremy, hence why one has to apply for citizenship & one didnt, as one was born in Papua (Moresby) & one NG (Mt Hagen) .

That was well before independence, they were born in the late 60s. (they are almost old farts, like me )