Tindiani (Migration)

The Administrative Appeals Tribunal considered an application by the applicant for a Confirmatory Residence (Class AK) visa, subclass 808. The applicant acknowledged that they did not hold the specified visa when they made their application and had requested referral to the Minister for consideration of a more favourable decision under section 351 of the Migration Act 1958 (Cth). This request arose after the applicant's pathway to permanent residency through employment closed due to redundancy, and they faced difficulties in obtaining permanent residency through other means.

The primary legal issue before the Tribunal was whether the applicant's circumstances warranted a referral to the Minister for the exercise of discretionary powers under section 351 of the Act. This involved assessing whether the applicant's situation met the criteria for "unique or exceptional circumstances" as outlined in the Migration Policy and Operational Contents, specifically concerning strong compassionate circumstances and the best interests of an Australian citizen child. The Tribunal also had to consider 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 specific visa criteria, their situation presented strong compassionate circumstances. These circumstances included the applicant's significant role in the life and support of their Australian citizen child, as well as the child's mother and family. The Tribunal also noted the relevance of the best interests of the child, which are to be treated as a primary consideration under the Convention on the Rights of the Child. Applying these considerations, the Tribunal found that the applicant's circumstances were sufficiently compelling to warrant referral for ministerial consideration.