YONG (Migration)

The Administrative Appeals Tribunal considered an application for a Confirmatory (Residence) (Class AK) visa, Subclass 808, made by an applicant who did not hold any of the prescribed visas at the time of application. The applicant had been living in Australia as a nanny for a family, receiving financial support and care from them, and was now in frail health, unable to travel.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria set out in clause 808.211 of the Migration Regulations. This clause requires an applicant to hold a specific type of visa at the time of application, including a Resident Return (Temporary) (Class TP) visa, an Emergency (Temporary) (Class TI) visa, a Border (Temporary) (Class TA) visa, or a Class 301 entry permit or visa granted under the Migration (1993) Regulations.

The Tribunal found that the applicant did not hold any of the prescribed visas at the time of her application. As satisfying clause 808.211 was an essential requirement for the grant of the Subclass 808 visa, the applicant failed to meet this criterion. Despite this, the Tribunal acknowledged the applicant's request for ministerial intervention under section 351 of the Migration Act and, having considered the relevant ministerial guidelines, decided to refer the matter to the Department for consideration by the Minister.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a Confirmatory (Residence) (Class AK) visa.