2018206 (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Subclass 808 Confirmatory (Residence) visa. The central dispute revolved around whether the applicant met the eligibility criteria for this visa at the time of application. The applicant's representative acknowledged that the applicant did not meet the visa requirements and that the application was primarily intended to create a pathway for a subsequent application for Ministerial Intervention, based on strong compassionate circumstances.

The Tribunal was required to determine if the applicant met the time of application requirements for the Subclass 808 visa. This involved assessing the evidence presented regarding the applicant's circumstances, including her relationship with her daughter's father, her financial situation, and her daughter's citizenship status. The Tribunal also considered the applicant's stated intention to seek Ministerial Intervention due to compassionate grounds.

In its reasoning, the Tribunal affirmed the Department's decision not to grant the visa, finding that the applicant did not meet the prescribed criteria. While the Tribunal did not accept that the applicant's daughter faced significant risk of harm or abandonment if returned to Cambodia, it did acknowledge strong compassionate circumstances. Specifically, the Tribunal recognised that the applicant's return to Cambodia could result in serious or irreversible harm to her Australian citizen daughter. Consequently, the Tribunal recommended that the Minister consider exercising discretion under section 351 of the Migration Act, noting that the applicant's daughter is an Australian citizen and that it is in her best interests to remain with her mother in Australia, where she has opportunities to avoid poverty and access education.