Atienza (Migration)

This matter concerned an appeal by Ms Atienza against a decision not to grant her an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer). The primary issue was that the relative requiring care, Mr Carranceja, had passed away, meaning Ms Atienza could no longer satisfy the criterion of being a carer of an Australian relative at the time of the decision. The case came before the Tribunal for review.

The Tribunal was required to determine whether to affirm the decision to refuse the visa, and separately, whether to refer Ms Atienza's case to the Minister for consideration of a more favourable decision under section 351 of the Migration Act 1958 (Cth). The referral to the Minister was sought on the grounds that strict application of the legislation would lead to an unfair result, and that there were significant compelling circumstances warranting ministerial intervention.

In its reasoning, the Tribunal acknowledged that Ms Atienza could not meet the specific visa criterion due to Mr Carranceja's death. However, it considered the President's Direction on Conducting Migration and Refugee Reviews and the Minister's Guidelines concerning ministerial intervention. The Tribunal noted the substantial evidence supporting Ms Atienza's claims, including numerous personal references and letters from healthcare professionals and others attesting to her character, community involvement, and the dedicated care she provided to Mr Carranceja. These factors, considered cumulatively, led the Tribunal to conclude that the case exhibited unique or exceptional circumstances, making a referral to the Minister appropriate.

Despite finding that a referral to the Minister was appropriate, the Tribunal affirmed the decision not to grant Ms Atienza the Subclass 836 visa, as she did not meet the legislative criteria. The Tribunal's decision was to refer the matter for ministerial intervention.