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Public Interest Grounds Allowing for Ministerial Intervention

The Applicant requested ministerial intervention pursuant to section 351 of the Migration Act in relation to the decision of the MRT.

In June 2012 the Applicant lodged an application for a VC-485 Skilled Graduate Visa, but in December 2012 the visa was refused due to the applicant failing to meet the English language proficiency requirement. However, in a second IELTS test completed subsequent to the lodgement of the visa application, the Applicant achieved a score that satisfied the language requirement. In May 2013 the Tribunal affirmed the DIAC’s refusal of the visa and found that the applicant did not have the required level of competent English. This was because despite redoing the test and attaining the necessary scores, the second attempt was undertaken after the date on which the visa application was lodged and hence the MRT would not take those results into consideration.

Immigration Solutions accepted that the test was undertaken after the date on which the visa application was lodged. However, it was unreasonable to find that the applicant did not possess the required level of competent English. It was clearly evident in his second IELTS that the applicant achieved scores which proved that he was competent in English. Accordingly Immigration Solutions submitted that the first IELTS test did not reflect the applicant’s competency level and that the second IELTS test should have been taken into consideration.

The Minister had to consider a number of issues in making the decision. The first of these was whether any circumstances where exceptional economic, scientific, cultural or other benefit to Australia would result from the visa applicant being permitted to remain. The applicant had already contributed significantly to Australia both economically and professionally; he was a qualified and registered nurse in Australia, was a valued employee at an aged care facility, hoped to also complete a midwifery course and to work in regional and remote areas where there are a continual shortage of nurses. There was a public interest ground for permitting the applicant to remain in Australia due to these factors and because there was a high demand for registered nurses.

The Minister also had to consider any compassionate circumstances such that a failure to recognise them would cause irreparable harm and hardship to an Australian citizen or family unit. The applicant had resided in Australia for five years and during that time had formed strong relationships with both family and friends. He lived with his relatives who were Australian citizens, and since the applicants own mother was deceased the applicant identified those relatives as his family unit. Those individuals had no other relatives in Australia and they would suffer severe psychological hardship if the applicant was removed. It would be especially distressing for his one individual who had medical conditions and as such it might have had a negative effect on their health. The applicant’s removal would also have caused financial hardship to them as they had loaned the applicant money to fund his tertiary education. If the applicant was repatriated this would greatly diminish his earning prospects and his ability to repay his relatives.

Another consideration for the Minister was the length of time that the applicant had been present in Australia and his level of integration into the community. The Applicant had lived in Australia since 2008 and had a very high level of integration into the community. His family and friends were in Australia, he studied and worked in Australia, and he attended church and followed an AFL team. The Minister also had to take any compassionate circumstances regarding the age, health and psychological state of the applicant into account. In considering this, the applicant’s diminished prospects of employment and income level if he were repatriated were relevant due to the significant hardship they would inflict on the applicant.

Due to the existence of strong and relevant public interest grounds and the unique exceptional circumstances, the Minister exercised their power to substitute the decision of the MRT with a more favourable decision. A Temporary Graduate (Subclass 485) visa was granted which allowed the applicant to remain in Australia for an extended period to apply for another visa.

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