1702606 (Migration)

This matter concerned an application for a Confirmatory (Residence) (Class AK) visa, subclass 808, by an applicant who conceded they did not meet the visa requirements. The Administrative Appeals Tribunal was required to determine whether the applicant met clause 808.211 of Schedule 2 to the Regulations.

The Tribunal was asked to consider whether to refer the case to the Minister for intervention under section 351 of the Migration Act 1958 (Cth). In making this determination, the Tribunal had regard to the President’s Direction Conducting Migration and Refugee Reviews and the Minister’s Guidelines on ministerial powers. The Tribunal noted that the applicant was in the community and held a bridging visa, with no compliance concerns.

The Tribunal reasoned that the Minister's Guidelines suggest intervention may be appropriate in cases exhibiting "unique or exceptional circumstances," including strong compassionate circumstances that would result in serious, ongoing, and irreversible harm and continuing hardship to an Australian citizen or family unit. The Tribunal concluded that the present case involved the likelihood of such harm and hardship to Australian citizens and an Australian family unit, and therefore referred the case for the Minister's consideration. The Tribunal also noted that the Minister might consider circumstances relevant to Australia's obligations under the Convention on the Rights of the Child, including the best interests of the child, which must be treated as a primary consideration.

The Tribunal affirmed the decision to refuse the visa.