1809620 (Refugee)

The Administrative Appeals Tribunal (AAT) considered an application for review by a non-citizen who had applied for a Protection visa. The applicant's previous partner visa applications had been refused due to the actions of a fraudulent migration agent, which prevented them from lodging a further partner visa application onshore due to the operation of section 48 of the Migration Act 1958 (Cth). The applicant sought referral of their case to the Minister for consideration of ministerial intervention, arguing that exceptional circumstances warranted this.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Protection visa, specifically under section 36(2)(a) or (aa) of the Migration Act, or if the matter should be referred to the Minister due to unique and exceptional circumstances. The applicant's representative argued that the applicant's genuine and continuing relationship with their Australian citizen spouse and two Australian citizen children, coupled with the inability to lodge a partner visa onshore and the potential for significant hardship and family separation, constituted such exceptional circumstances. The representative also highlighted the risks associated with international travel during the COVID-19 pandemic as a factor supporting referral.

The Tribunal noted that the applicant did not satisfy the criteria for a Protection visa under section 36(2)(a) or (aa) of the Migration Act. The applicant's representative had requested that the matter be referred to the Minister for consideration of ministerial intervention, citing strong compassionate circumstances that would result in ongoing and irreversible harm and continuing hardship to an Australian family unit. The Tribunal acknowledged the applicant's submission regarding the impact on the Australian citizen children and the family unit if the applicant were required to depart Australia, as well as the context of the COVID-19 pandemic. However, the Tribunal's decision focused on the criteria for the Protection visa itself.

The Tribunal affirmed the decision not to grant the applicant a protection visa, finding that the applicant did not satisfy the criteria under section 36(2) of the Migration Act. The Tribunal's decision did not make an order for referral to the Minister, but rather affirmed the refusal of the protection visa application.