Vani (Migration)

This matter concerned an application for a Confirmatory (Residence) (Class AK) Subclass 808 visa by a 5.5-year-old child. The applicant's mother, who had overstayed her visa, tragically died by suicide, leaving the applicant unlawful. The applicant had since been living with her Australian citizen maternal grandmother, who was awarded sole parental responsibility by the Family Court of Australia. The application was lodged with the explicit understanding that it would be refused, with the intention of seeking review by the Administrative Appeals Tribunal and subsequent referral for Ministerial Intervention under section 351 of the *Migration Act 1958* (Cth) due to unique and exceptional circumstances. The Tribunal was required to determine whether the decision to refuse the visa should be affirmed.

The Tribunal considered the applicant's submissions, which acknowledged that the applicant could not satisfy the Schedule 2 requirements for the visa. The application was strategically lodged as a valid application with the expectation of refusal, to facilitate a pathway to Ministerial Intervention based on compassionate circumstances and the best interests of the child. The applicant's migration agent highlighted the tragic circumstances of the mother's death and the grandmother's sole parental responsibility, noting that the grandmother was willing and able to provide care and support. The agent also indicated that the applicant's local Member of Parliament supported the request for Ministerial Intervention.

The Tribunal affirmed the decision under review. The reasoning focused on the applicant's stated intention from the outset to not meet the visa criteria and to use the process to seek Ministerial Intervention. The Tribunal noted that the applicant's migration agent had explicitly stated that the application was lodged with the expectation of refusal, and that the applicant intended to seek review and then Ministerial Intervention under s 351 of the *Migration Act 1958*. The Tribunal found that the applicant had not sought to demonstrate that she met the criteria for the visa, but rather that the application was a procedural step in seeking intervention based on compassionate circumstances.