1515647 (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Skilled (Residence) (Class VB) visa, Subclass 886. The applicant's eligibility for this visa was contingent on meeting specific sponsorship requirements. The primary dispute revolved around the withdrawal of sponsorship by the applicant's aunt, who was an Australian citizen and had initially sponsored her visa application.

The Tribunal was required to determine whether the applicant satisfied the criteria under subclause 886.222 of the Migration Regulations. Specifically, the Tribunal had to ascertain if the applicant met either subclause 886.222(2), which requires nomination by a State or Territory government agency, or subclause 886.222(3), which mandates sponsorship by a specified relative who is over 18, an Australian citizen or permanent resident or eligible New Zealand citizen, and usually resident in Australia.

The Tribunal found that the applicant did not meet subclause 886.222(2) as there was no evidence of State or Territory nomination. Regarding subclause 886.222(3), while the applicant was initially sponsored by her aunt, the aunt subsequently withdrew her sponsorship. The applicant acknowledged having no other eligible relatives in Australia who could sponsor her. The Tribunal accepted that the applicant had made sincere attempts to resolve a family rift and noted her positive contributions to Australia through work, study, and community engagement. However, the Tribunal held that the criteria for the Subclass 886 visa do not allow for discretion or waiver of the sponsorship requirement, even in compassionate or exceptional circumstances. The Tribunal also considered and rejected the possibility of adjourning the review to allow for further reconciliation, referencing case law that limits indefinite deferral of decision-making processes and considers the reasonableness of adjournment requests.

Consequently, the Tribunal affirmed the decision not to grant the applicant the visa. The Tribunal noted that section 351 of the Migration Act provides a discretionary power for the Minister to grant a visa, and it remains open for the applicant to make a direct request to the Minister if she believes her case involves unique or exceptional circumstances.