Sorbito (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Department of Home Affairs to refuse the applicant, a Filipino national, a Confirmatory (Residence) (Class AK) visa. The applicant had arrived in Australia on various temporary visas, including a Prospective Marriage visa, and had given birth to an Australian citizen child. The relationship with her partner, the child's father, had since broken down, and allegations of family violence were raised.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the Confirmatory (Residence) (Class AK) visa, specifically subclauses 808.211 and 808.213 of the Migration Regulations. The applicant's representative conceded that the applicant did not meet the requirements of clause 808.211, which pertains to holding specific previous visa classes at the time of application. Furthermore, the applicant did not satisfy the criteria outlined in clause 808.213, which relates to lawful presence in Norfolk Island or Australia under specific conditions.

The Tribunal found that as the applicant failed to meet the threshold requirements of clauses 808.211 and 808.213, she did not satisfy clause 808.211A, and therefore did not meet the time of application criteria for the visa. Consequently, the Tribunal affirmed the Department's decision to refuse the visa. However, noting the applicant's circumstances, including allegations of family violence, the breakdown of her relationship, and the best interests of her Australian citizen child, the Tribunal recommended that the matter be referred for consideration of Ministerial intervention.