Lolohea (Migration)

This matter concerned an application for a Transitional (Temporary) Visa (Subclass 812) by the applicant, who sought to have their case referred to the Minister for Ministerial Intervention. The applicant's eligibility for the visa was assessed against clause 812.723 of the Migration Regulations, which outlines several criteria relating to marital relationships, dependent children, aged parents, and various relative categories, all requiring a connection to Australia that commenced on or before 15 October 1990. The applicant also raised compassionate grounds, citing poor health and reliance on family in Australia.

The primary legal issue before the Tribunal was whether the applicant met any of the specific criteria set out in clause 812.723 for the grant of a Transitional (Temporary) Visa (Subclass 812). A secondary issue was whether, even if the applicant did not meet the specific criteria, there were sufficient compassionate grounds to warrant a referral to the Minister for discretionary intervention under section 351 of the Migration Act 1958 (Cth).

The Tribunal found that the applicant had failed to provide sufficient evidence to satisfy any of the subclauses within clause 812.723. Specifically, there was no evidence of a genuine and continuing marital relationship that began before 15 October 1990, nor evidence of being a dependent child, aged parent, or any of the specified relative categories since that date. While the Tribunal acknowledged the applicant's claims of poor health and reliance on family, it was not satisfied that these circumstances met the threshold for ministerial intervention. The Tribunal noted that the applicant had family in Tonga who might be able to provide care, and that Australian family could potentially provide financial support. Furthermore, the Tribunal found that the evidence regarding the lack of medication in Tonga was not sufficiently detailed to establish an inability to access adequate medical care. Despite accepting that some compassionate circumstances existed, the Tribunal concluded, after considering relevant ministerial guidelines, that it would not refer the matter to the Minister. The Tribunal affirmed the decision not to grant the applicant a Transitional (Temporary) Visa (Subclass 812).