1833065 (Migration)

This matter concerned an application for a Contributory Aged Parent (Residence) (Class DG) visa, subclass 864. The applicant sought review of a decision affirming the refusal of her visa application. The central dispute revolved around whether the applicant met the criteria stipulated in clause 864.212 of the Migration Regulations 1994 at the time of her application.

The primary legal issue before the Tribunal was to determine if the applicant satisfied the requirements of clause 864.212, which necessitates being an ‘aged parent’ as defined in regulation 1.03, or being a current or previous holder of a substituted subclass 600 visa, or a current or previous holder of a subclass 884 (Contributory Aged Parent (Temporary)) visa. The Tribunal was also asked to consider a request for referral to the Minister for intervention under section 351 of the Migration Act 1958, based on alleged unique or exceptional circumstances.

The Tribunal found that the applicant did not meet the definition of an ‘aged parent’ and had never held a substituted subclass 600 visa or a subclass 884 visa. Crucially, the applicant herself conceded in written submissions that she was aware her application for the subclass 864 visa would be unsuccessful. Consequently, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of the visa. Regarding the request for ministerial intervention, the Tribunal noted the submissions concerning the applicant's two young Australian citizen children, who had been diagnosed with ADHD, and the applicant's de facto partner's medical condition, which allegedly impaired his ability to care for the children alone. The Tribunal acknowledged these factors as potentially constituting unique or exceptional circumstances warranting consideration by the Minister.

The Tribunal affirmed the decision under review, finding that the applicant failed to meet the essential visa criteria. However, the Tribunal also noted the submissions made in support of a referral to the Minister for intervention under section 351 of the Migration Act 1958, highlighting the exceptional circumstances presented regarding the applicant's children and partner.