Tribunal: Member J Clarke
The AAT affirmed a decision of a delegate of the Minister for Immigration refusing to grant the applicant a temporary family relationship visa. However, due to the compassionate circumstances in this case, the AAT referred the matter to the Minister.
The applicant came to Australia in 2014 on a visitor visa which was valid until early 2015. He applied for the temporary family relationship visa in late 2017, as a member of the family unit of his de facto partner and fiancée.
However, more than two years had passed between the applicant holding a visitor visa and applying for the new visa. In order to satisfy the primary criterion for this visa type he needed to lodge his application within 12 months of last holding a visitor visa.
The applicant asked the Tribunal to waive the requirement, claiming strong family ties to Australia through his fiancée and three young children, one of whom was born extremely premature and needed ongoing medical treatment. The applicant also worked full time in a newly permanent role and was the sole income earner for his family.
The Tribunal explained time of application is a primary criterion, meaning it could not consider a waiver on compassionate grounds. The applicant and his partner requested their case be referred to the Minister allowing him to use his discretion to consider granting the visa.
The Tribunal agreed to refer the case to the Minister, as applying the law in this case could lead to an unfair or unreasonable result. There were enough compassionate circumstances, particularly in relation to the children who were at risk of ongoing harm and hardship.
The Tribunal pointed out that people staying unlawfully in Australia do not normally receive favourable decisions from the Minister and neither the applicant or his partner were Australian citizens or permanent residents.
However, the circumstances of the applicant and his family did fit within the unique and exceptional circumstances a ministerial intervention requires and this could be balanced against the other consideration.
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