Sanele (Migration)

The applicant, Sanele, sought review by the Administrative Appeals Tribunal of a decision not to grant a Transitional (Permanent) Visa (Subclass 812). The decision under review was made pursuant to the *Migration Act 1958* (Cth). The Tribunal affirmed the decision not to grant the visa.

The primary legal issue before the Tribunal was whether to exercise its discretion under s 351 of the *Migration Act 1958* to refer the applicant's case to the Minister for consideration of a more favourable decision. This discretion is exercisable if the Minister believes it is in the public interest. The applicant argued that incorrect advice received from the Department, which led to his inability to return to Australia and the breakdown of his relationship, constituted circumstances beyond his control, and highlighted the length of his prior residence in Australia.

The Tribunal considered the applicant's submissions and the ministerial guidelines contained within the Department's Procedures Advice Manual (PAM3) regarding the exercise of the s 351 discretion. Despite the applicant's circumstances, the Tribunal decided not to refer the matter to the Minister. The Tribunal noted that the applicant retained the ability to make a direct request to the Minister. Consequently, the Tribunal affirmed the original decision not to grant the applicant a Transitional (Permanent) Visa in Class 812.