1836727 (Migration)

This matter concerned an application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa, Subclass 461. The applicant, a New Zealand citizen, applied for the visa more than 12 months after last holding a substantive visa. The applicant sought a waiver of Schedule 3 requirements based on strong compassionate circumstances, including the premature birth of his daughter, his role as the sole financial provider for his family, and the need to remain in Australia for his children's medical care and emotional well-being.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the Subclass 461 visa, specifically cl.461.213, which required consideration of Schedule 3 requirements. The applicant also requested that the matter be referred to the Minister for intervention under s.351 of the Migration Act 1958 (Cth), arguing that the best interests of his children were not adequately considered and that unique or exceptional circumstances warranted such a referral.

The Tribunal considered the applicant's submissions regarding his strong family ties, financial commitments, and the critical medical needs of his prematurely born daughter. It also had regard to the President's Direction on Conducting Migration and Refugee Reviews and the Minister's Guidelines on ministerial powers. While acknowledging the applicant's compelling compassionate circumstances, the Tribunal noted that the Minister's Guidelines generally view cases unfavourably where the applicant has been an unlawful non-citizen. The Tribunal found that, despite the applicant's claims of serious, ongoing, and irreversible harm and hardship, the circumstances were not considered unique or exceptional under the Minister's Guidelines because no family member held Australian citizenship or permanent residency, and the applicant's partner held a temporary Subclass 444 visa. However, the Tribunal identified specific circumstances that it believed warranted referral to the Minister, including potential unintended consequences of legislation leading to unfair or unreasonable results, and compassionate circumstances that could result in serious harm and hardship.

Ultimately, the Tribunal affirmed the decision not to grant the applicant the Subclass 461 visa. Despite finding the applicant and his partner credible and acknowledging the compelling reasons presented, the Tribunal concluded that the case did not meet the threshold for granting the visa directly. The Tribunal did, however, consider it appropriate to make a referral to the Minister for intervention.