Kaensan (Migration)

This matter concerned an application for a Subclass 500 (Student) visa. The applicant, who was offshore, sought a referral to the Minister for Ministerial Intervention, citing strong compassionate circumstances arising from the death of her Australian de facto partner. The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically regarding evidence of enrolment in a registered course and genuine access to funds, and whether the circumstances warranted a referral for Ministerial Intervention.

The legal issues before the Tribunal were twofold: first, whether the applicant satisfied the primary criteria for a Subclass 500 visa, namely enrolment in a full-time registered course and genuine access to funds; and second, whether the applicant's circumstances, including the death of her de facto partner and her desire to remain in Australia with his family, constituted unique or exceptional circumstances that would justify a referral to the Minister for consideration of his public interest powers. The Tribunal noted that the applicant was an offshore secondary applicant and that the death of her partner meant she likely could not satisfy the criteria for a partner visa.

The Tribunal reasoned that the applicant did not meet the enrolment criteria as she was not enrolled in a registered course. Furthermore, the Tribunal was not satisfied that the applicant had genuine access to funds, finding that a key criterion was not met. Regarding the request for Ministerial Intervention, the Tribunal considered the Minister's guidelines, which generally reserve intervention for unique or exceptional circumstances. While acknowledging the applicant's stated compassionate circumstances, including her son's desire to remain in Australia with her deceased partner's family, the Tribunal found that these did not meet the threshold for referral under the guidelines, particularly as the applicant was an offshore applicant and had not applied for a partner visa before her partner's death.

Consequently, the Tribunal affirmed the decision under review, finding that the applicant did not meet the criteria for the grant of a Subclass 500 (Student) visa. The Tribunal also concluded that the circumstances did not warrant a referral to the Minister for consideration of his public interest powers.