Given circumstances of this matter and noting the applicant's concession that he is no longer capable of satisfying cl.802.221, we are instructed to request the Tribunal to consider referring the applicant to the Minister for consideration of intervention.

We submit that applicant has a unique set of circumstances that is appropriate and in the public interest for ministerial intervention being:

1. The applicant first arrived in Australia in April 2019 as the holder of subclass 500 Student visa.

1. The applicant's application for subclass 802 Child visa was not made for the purpose of cessation of study. The applicant's study continued notwithstanding his application for permanent residence visa in that he has successfully completed Diploma of Information and Communication Technology and the Bachelor of Information and Communications Technology.
2. The visa refusal of the subclass 802 Child visa would not be viewed negatively by the Tribunal in determining whether to refer the matter to the Minister for consideration of intervention. This is because the death of the applicant's father was an unfortunate turn of events beyond the applicant's control. We submit had the applicant's application for subclass 802 Child visa been more comprehensively prepared at the Department stage, it could have yield an entirely different outcome. Further, had this review being dealt with earlier, before the death of the applicant's late father, it may also yield a different outcome. Thus, we submit that the current predicament is an extremely unfortunate set of circumstances that the applicant finds himself in.
3. The applicant presently wishes to regularise his visa status in Australia by returning to a subclass 500 Student visa so he can complete his current course of study in Master of Artificial Intelligence which he expects to complete this year.
4. The Tribunal has considered this submission.
5. Section 351 of the Act states:

(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. ...

(3) The power under subsection (1) may only be exercised by the Minister personally. ...

(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

1. The power in s 351 is a power that is personal to the Minister and cannot be delegated. The Minister also does not have a duty to consider whether to exercise this power or not.
2. There is no formal power for the Tribunal to refer matters to the Minister for the Minister to consider exercising the power in s 351 because of the non-compellable nature of the Minister's power. However, over time an informal practice has emerged where the Tribunal has made such 'referrals'. These are not 'referrals' in any legal or formal sense but are often sought by applicants presumably because they hope if the Tribunal makes a 'referral' in a particular case then it may have a greater chance of actually being brought to the Minister's attention. Whether this is the case is a moot point and in any event an applicant can directly seek that the Minister exercise the Minister's power under s 351 in their circumstances, irrespective of whether the Tribunal makes such a 'referral' or not.
3. In 2016 the Minister issued guidelines known as the 2016 Ministerial Instructions to the Department on which applications for the Minister to exercise the power under s 351 (and other intervention powers) should and should not be brought to the attention of the Minister. In Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 the High Court of Australia on 12 April 2023 found the Department's administration of these guidelines breached the Minister's non-delegable statutory powers to decide procedurally whether to consider an application and where the Minister chose to consider an application to decide substantially whether to substitute a more favourable decision or not.
4. While the administration of the 2016 Ministerial Instructions by the Department has been ruled as unlawful by the High Court of Australia, the 2016 Ministerial Instructions still provide valuable guidance on when the Minister may choose to make either the procedural or substantive decision referred to above. The 2016 Ministerial Instructions require that there must be unique or exceptional circumstances to establish that it is in the public interest for the Minister to intervene.
5. The full 2016 Ministerial Instructions can be found online at: https://immi.homeaffairs.gov.au/what-we-do/status-resolution-service/ministerial-intervention
6. The Ministerial Instructions are not a statement of law but do make it clear that the Minister exercising the power under s 351 of the Act is not part of the visa process and so the Tribunal as presently constituted does not make such 'referrals' lightly.
7. The Ministerial Instructions provide non-exhaustive examples of the unique or exceptional circumstance that may lead to the Minister exercising the power under s 351 of the Act, including the following examples:

Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

Compassionate circumstances regarding your age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.

1. The Tribunal has considered the applicant's circumstances and acknowledges that the applicant wishes to complete his current course of study, being a Master of Artificial Intelligence at a university in New South Wales, which the applicant expects to complete this calendar year.
2. The Tribunal accepts the submission of the representative that the death of the applicant's father as the sponsor in this review was a very unfortunate circumstance outside the applicant's control.
3. The Tribunal does not accept, based on the information presently before the Tribunal, the representative's submissions that had the applicant's visa application been more comprehensively prepared at the time of application or had the applicant's father been alive at the time of this decision, that a different result may have been yielded in relation to the applicant's visa application.
4. Based on the information the applicant has submitted to the Department and to the Tribunal the submission that the applicant would have met the time of application criteria at the time when his father, the sponsor, was alive if his visa application had been processed more expeditiously appears to be speculative to the Tribunal.
5. There is no information before the Tribunal about any harm - let alone serious, ongoing and irreversible harm and continuing hardship - that would be caused to an Australian citizen or Australian family unit if the applicant is not granted the visa. The evidence before the Tribunal is that the applicant has not met his half-siblings in Australia and his mother is in China.
6. There is also no information before the Tribunal about the applicant's age, health or psychological state that suggests the applicant being refused the visa would result in serious, ongoing and irreversible harm and continuing hardship to the applicant.
7. In these circumstances, the Tribunal declines to refer the applicant's circumstances to the Minister for the Minister to consider exercising his power under s 351 of the Act.
8. There is nothing preventing the applicant applying to the Minister directly with a request that the Minister exercises the Minister's power under s 351 of the Act to grant the applicant a more favourable outcome and providing additional and updated information to the Minister if the applicant chooses to do so.

1. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Representative for the Applicant: Mr Da Wei (David) Gu of ProActive Legal

Migration Regulations 1994

dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:

(a) has not turned 18; or

(b) has turned 18 and:

(i) is dependent on that person; or

(ii) is incapacitated for work due to the total or partial loss of the child's or step-child's bodily or mental functions.

(a) a person who is not the child of the parent but who is the child of the parent's current spouse or de facto partner; or

(b) a person who is not the child of the parent but:

(i) who is the child of the parent's former spouse or former de facto partner; and

(ii) who has not turned 18; and

(iii) in relation to whom the parent has:

(A) a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

(B) guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

(1) Subject to subregulation (2), a person (the first person) is dependent on another person if:

(a) at the time when it is necessary to establish whether the first person is dependent on the other person:

(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person's basic needs for food, clothing and shelter; and

(ii) the first person's reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person's basic needs for food, clothing and shelter; or

(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions.