Koehler (Migration)

The Administrative Appeals Tribunal considered a request by the applicant, Mr. Koehler, for the Tribunal to refer his case to the Minister for Immigration for consideration of a more favourable decision under section 351 of the Migration Act 1958 (Cth). The applicant sought a Confirmatory (Residence) (Class AK) Subclass 808 visa but did not meet the time of application criteria, as his former employer had not attained the correct sponsorship, and he held a Bridging Visa E at the time of application, not a prescribed visa.

The primary legal issue before the Tribunal was whether the applicant's circumstances warranted a referral for ministerial intervention under section 351 of the Act, which allows the Minister to substitute a more favourable decision if it is in the public interest. This required the Tribunal to assess if the applicant's situation fell within the guidelines for "unique or exceptional circumstances" as outlined in the Migration Policy and Operational Contents. The Tribunal was also mindful of the High Court's decision in *Davis v MICMSMA*, which affirmed that all requests for ministerial intervention must be considered by the Minister personally.

The Tribunal reasoned that while the applicant did not meet the legislative criteria for the visa, the application of the relevant legislation had led to an unfair and unreasonable outcome for him. The policy guidelines for ministerial intervention specifically include circumstances where the application of legislation results in unfair or unreasonable outcomes, or where there are unique or exceptional circumstances. The Tribunal considered the applicant's specialised skills as a set builder to be relevant in this context, suggesting that his situation might align with the criteria for referral.

The Tribunal affirmed its decision to refer the matter to the Department for consideration by the Minister to exercise his discretion under section 351 of the Act. This referral was based on the Tribunal's assessment that the applicant's circumstances presented an unfair and unreasonable outcome due to the legislative requirements, potentially falling within the scope of unique or exceptional circumstances contemplated by the ministerial intervention guidelines.