Lay (Migration)

The Administrative Appeals Tribunal considered a request by the applicant, Lay, for the Tribunal to refer their case to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs for consideration of a more favourable decision under section 351 of the Migration Act 1958 (Cth). The applicant was not a holder of any relevant visas.

The central legal issue before the Tribunal was whether the applicant's circumstances constituted "unique and exceptional circumstances" as defined by the Minister's guidelines, thereby warranting a referral for Ministerial intervention. The Tribunal was required to assess if the applicant's situation fell within the categories outlined in the guidelines, such as strong compassionate circumstances, significant benefit to Australia, or circumstances leading to an unfair or unreasonable result due to the application of relevant legislation.

The Tribunal noted that the Minister's guidelines, as interpreted in light of the High Court's decision in *Davis v MICMSMA*, require that all requests for Ministerial intervention be considered by the Minister personally. While the Tribunal itself may refer cases for Ministerial consideration if it believes the issues involve unique or exceptional circumstances, applicants are also entitled to seek intervention directly. In this instance, the Tribunal considered whether the applicant's situation, particularly in the context of the COVID-19 pandemic and associated lockdowns, might have led to an unfair or unreasonable outcome, a factor explicitly mentioned in the guidelines as a potential ground for intervention.