2003890 (Migration)

The applicant sought review of a decision by the Department of Immigration and Multicultural Affairs to refuse her a Subclass 851 Resolution of Status (Residence) visa. The dispute centred on whether the applicant met the eligibility criteria for this visa subclass, which required her to be a current or former holder of a Subclass 850 Resolution of Status (Temporary) visa. The matter was heard by Hugh Sanderson, a Member of the Migration Review Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant satisfied the criteria set out in clause 851.221 of the Migration Regulations 1994. This clause stipulated that an applicant must have held a Subclass 850 visa or have held such a visa that ceased upon the refusal of a Subclass 851 visa, which was subsequently set aside by the Tribunal. The Tribunal was also required to consider the applicant's claims regarding her Australian citizen children with intellectual handicaps and her request for Ministerial referral.

The Tribunal reasoned that the applicant had never held a Subclass 850 Resolution of Status (Temporary) visa, an fact acknowledged by the applicant herself. Consequently, the applicant failed to meet the essential criterion in cl.851.221, necessitating the affirmation of the Department's decision to refuse the visa. While the applicant indicated her intention to seek Ministerial Intervention, the Tribunal noted that it had limited information to support claims of unique or exceptional circumstances justifying such intervention. Therefore, the Tribunal affirmed the decision not to grant the visa and stated that it would not refer the matter to the Minister, leaving it to the applicant to make her own request for intervention, supported by comprehensive documentation.