The Ministerial Direction No. 102 – Order for considering and disposing of Family visa applications under sections 47 and 51 of the The Ministerial Direction No. 102 – Order for considering and disposing of Family visa applications under sections 47 and 51 of the Migration Act 1958 (Direction 102) is a directive issued under the Migration Act 1958.
Order of priority
Under Direction 102, section 8, Family visa applications are processed in the following order (starting with the highest priority):
- Applications where the Minister has personally intervened;
- Applications for spouses, de facto partners, prospective spouses, or dependent children;
- Applications from orphan relatives;
- Contributory Parent visas, including Contributory Aged Parent visas;
- Applications where the primary applicant is a carer; and
- Parent visas, Aged Parent visas, or visas for remaining relatives or aged dependent relatives.
Exception
Direction 102, subparagraph 9(a), allows delegates to take into account any special circumstances of a compassionate nature (provided that there are compelling reasons) to depart from the order of priority under section 8. Decisions are usually made on an individual basis by the Minister and/or Tribunal, taking into account the context of the applicant’s particular situation and the intent of the relevant provisions.
The terms “compelling” and “compassionate” are not explicitly defined in the Migration Act 1958 or Migration Regulations 1994. As such, the ordinary dictionary meaning of the terms applies.
Examples of “compelling” and “compassionate” reasons
Policy regarding Direction 102 provides the following examples of of “compelling” and “compassionate” :
- “Life threatening/debilitating medical condition/serious deteriorating physical health affecting the visa applicant or sponsor or members of their family units; and
- Any other circumstances that are significantly detrimental to a sponsor or member(s) of the family unit if these circumstances are permanent and have significant long-term impact.”
These examples are to be regarded for guidance purposes only as every case is assessed based on its individual circumstances.
Generally, some other broad examples of “compelling” and “compassionate” include the following:
1. Health-related issues:
- The sponsor or applicant has a terminal illness or severe disability and requires the partner’s assistance.
- Urgent medical needs for the applicant or their family
2. Family situations:
- Situations where the applicant’s safety is at risk due to family violence.
3. Legal and Social Context
- Same-sex couples residing in countries/areas where such relationships are criminalised.
Discretion
It is at the discretion of the delegate to determine whether there is sufficient evidence to support the primary applicant’s claims and whether the case falls within the provisions of section 9 of the Direction 102.
Partner processing enquiry form
Applications for priority processing can be made for partner visa applications using the Partner Processing Enquiry Form here.
We note that applications are only eligible for priority processing if all required information and legislative requirements are fully met. You can find more information here.
Key Takeaways
- Applications under Direction 102 are relatively uncommon, and the process can be demanding, with no guarantee of success.
- While the success rate may be low, it is critical to present a well-prepared application with strong supporting evidence
- Compelling and compassionate reasons are assessed on a case-by-case basis, considering the individual circumstances of each applicant.
Conclusion
Direction 102 underscores the importance of addressing exceptional personal circumstances in the processing of family visa applications. While its provisions offer flexibility to address unique and compelling circumstances, applicants must demonstrate substantial evidence to support their claims.