Woolley (Migration)

This matter concerned an application for a Confirmatory (Residence) (Class AK) Subclass 808 visa. The applicant, who was the holder of a FA 600 Visitor visa, sought to have the decision not to grant her the visa reviewed. The applicant also requested that the Tribunal refer her case to the Minister for consideration under section 351 of the Migration Act 1958 (Cth) for a more favourable decision in the public interest. The Tribunal was presided over by Meena Sripathy.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the grant of the Subclass 808 visa, specifically clause 808.211A, which required satisfaction of either clauses 808.211 and 808.212, or clause 808.213. A secondary issue was whether the applicant's circumstances constituted unique or exceptional circumstances warranting a referral to the Minister under section 351.

The Tribunal found that the applicant did not meet clause 808.211A because she was the holder of a substantive visa (a Visitor visa) and therefore did not satisfy the requirements of clauses 808.211, 808.212, or 808.213. The Tribunal noted that the applicant did not seek to satisfy the criteria for the Contributory (Residence) Class AK visa. Regarding the request for Ministerial intervention, the Tribunal acknowledged the applicant's submissions concerning her de facto relationship, the death of her partner during the COVID-19 pandemic, and her desire to remain in Australia to be near his grave, which she stated was his wish for her. However, the Tribunal concluded that these circumstances did not meet the threshold for mandatory referral.

The Tribunal affirmed the decision not to grant the visa. It indicated that it would forward the applicant's submissions and supporting documentation to the Department for the Minister's consideration.