2101274 (Migration) [2021] AATA 383 (12 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2101274
MEMBER:Katie Malyon
DATE:12 February 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Statement made on 12 February 2021 at 3:01 pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – arrived as adult dependent child on father’s working visa – visa cancelled when no longer dependent on father – lengthy period as unlawful non-citizen – criminal convictions, imprisonment and immigration detention – did not apply for visa within 2 days – statutory bar now applies – previous applications for bridging visas and to minister – intention to apply for partner visa onshore – Australian partner and children – role in children’s and step-children’s lives – best interests of children – credible evidence – COVID-19 travel restrictions and higher risk in home country – referred for ministerial consideration – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5(1), (9), 73, 116(1)(a), 189(1), 194, 195, 195A, 351
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212(1), 050.221CASES
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20
Wan v Minster for Immigration & Multicultural Affairs [2001] FCA 568Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
statement of decision and reasons
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 February 2021 to refuse to grant [the applicant] a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act). He is a national of Ghana.
On 30 January 2021, [the applicant] applied for the visa. At that time, Class WE contained 2 subclasses: Subclass 050 Bridging (General); and, Subclass 051 (Bridging (Protection Visa Applicant). In this case, [the applicant] is seeking to satisfy the criteria for the grant of a Subclass 050 Bridging (General) visa (BVE).
Criteria for the grant of a BVE are set out in Part 050 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Clause 050.212 is a primary criterion to be met at the time of application for the visa. Clause 050.212(1) requires the applicant to meet the requirements of subclause (2), (3), (3A), (4), (4AA), (4AAA), (4AB), (5), (5A), (5B), (6), (6AA), (6A), (6B), (7), (8) or (9) Schedule 2 to the Regulations. An applicant must continue to satisfy this criterion at the time of decision: cl.050.221 of Schedule 2 to the Regulations. These criteria are set out in the Attachment to this decision.
The delegate decided to refuse to grant [the applicant] the visa on 4 February 2021 on the basis that he did not…
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CaseChat Overview and Summary
The Administrative Appeals Tribunal considered an application for a Bridging E (Class WE) visa made by an individual who arrived in Australia as a dependent child on a Subclass 457 visa in December 2007. The applicant's Subclass 457 visa was cancelled in January 2010 when he was no longer considered dependent on his father. The applicant subsequently remained in Australia as an unlawful non-citizen, experiencing criminal convictions, imprisonment, and immigration detention. The application for the Bridging E visa was made on 30 January 2021, after a lengthy period of unlawful status and a failure to apply for a visa within the prescribed two-day period following the cancellation of his previous visa, which triggered a statutory bar.
The Tribunal was required to determine whether the applicant met the criteria for a Subclass 050 (Bridging (General)) visa at the time of his application, specifically whether he satisfied any of the alternative criteria outlined in clause 050.212 of Schedule 2 to the Migration Regulations 1994, and whether he continued to meet those criteria at the time of the decision. The applicant intended to apply for a Partner visa onshore, citing his Australian partner and children, his role in their lives, and the best interests of his children. He also raised concerns about COVID-19 travel restrictions and the higher risk of exposure in his home country.
The Tribunal found that the applicant did not meet the criteria for the Bridging E visa, affirming the decision to refuse its grant. However, the Tribunal formed the view that the matter warranted referral to the Minister for consideration under section 351 of the Migration Act 1958. This referral was based on the applicant's strong connection to Australia, his two Australian citizen children and step-children, evidence suggesting their well-being has been negatively impacted by his absence and detention, his mother's Australian citizenship, his credible testimony regarding his remorse and changed perspective on alcohol, his work history in Australia, and the potential adverse impact on his children's education and well-being if he were required to apply for a Partner visa offshore. The Tribunal also noted the current COVID-19 pandemic and the potential for increased risk and cost associated with offshore applications. The Tribunal concluded that these cumulative factors presented unique or exceptional circumstances, justifying a referral to the Minister to consider exercising his discretionary public interest powers.
The Tribunal was required to determine whether the applicant met the criteria for a Subclass 050 (Bridging (General)) visa at the time of his application, specifically whether he satisfied any of the alternative criteria outlined in clause 050.212 of Schedule 2 to the Migration Regulations 1994, and whether he continued to meet those criteria at the time of the decision. The applicant intended to apply for a Partner visa onshore, citing his Australian partner and children, his role in their lives, and the best interests of his children. He also raised concerns about COVID-19 travel restrictions and the higher risk of exposure in his home country.
The Tribunal found that the applicant did not meet the criteria for the Bridging E visa, affirming the decision to refuse its grant. However, the Tribunal formed the view that the matter warranted referral to the Minister for consideration under section 351 of the Migration Act 1958. This referral was based on the applicant's strong connection to Australia, his two Australian citizen children and step-children, evidence suggesting their well-being has been negatively impacted by his absence and detention, his mother's Australian citizenship, his credible testimony regarding his remorse and changed perspective on alcohol, his work history in Australia, and the potential adverse impact on his children's education and well-being if he were required to apply for a Partner visa offshore. The Tribunal also noted the current COVID-19 pandemic and the potential for increased risk and cost associated with offshore applications. The Tribunal concluded that these cumulative factors presented unique or exceptional circumstances, justifying a referral to the Minister to consider exercising his discretionary public interest powers.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
For the following reasons, the Tribunal has concluded that the decision under review must be affirmed. However, for reasons set out below, the Tribunal has formed the view that this matter should be referred to the Minister consistent with s.351 of the Act. CONSIDERATION OF CLAIMS AND EVIDENCE The issues in this case are whether, at the time of application on 30 January 2021, [the applicant] met cl.050.212(1) because he satisfied one of the alternative criteria set out in cl.050.212(2) - (9) of Schedule 2 to the Regulations and, if so, whether he continues to meet that criterion at the time of this decision as required by cl.050.221 of Schedule 2 to the Regulations.Immigration history During the hearing, the Tribunal discussed with [the applicant] his immigration history in Australia as well as key events that have taken place since his arrival. Based on available information - including not only the Department’s Movement Records but also the delegate’s decision record provided to the Tribunal - the Tribunal indicated that it had compiled a chronology of [the applicant]’s migration background in Australia. It noted the Tribunal would ask him to confirm whether the information as compiled was correct and invite his comments on some of the events and persons identified. [The applicant] confirmed that the following is an accurate record of his migration history and background in Australia. [In] December 2007, [the applicant] arrived in Australia as the holder of a secondary Subclass 457 visa. At the time, he was [Age 1] years old. [The applicant]’s father had been sponsored to work as [an Occupation] by publicly listed company [Company name]. [Company name] successfully nominated not only [the applicant]’s father and his mother but also the couple’s 3 adult children. [The applicant] explained that, at the time, he and his siblings were dependent on their parents. He has not left Australia since his arrival just before Christmas in 2007. [The applicant]’s father applied for an Employer Nomination Scheme Subclass 856 visa nominated by [Company name] but the company withdrew its nomination on 19 June 2009 when it realised the adult children had been included. Subsequently, [the applicant]’s parents were granted permanent residence nominated by [Company name] and have since acquired Australian citizenship. His parents have divorced. His father has returned to Ghana and remarried. [The applicant]‘s mother continues to live in [City] where his [Age 2] year-old twin [children], [Child 1] and [Child 2], live with their mother, [Ms A]. [Ms A] is an Australian citizen of [Specified] heritage. [The applicant]‘s siblings also continue to live in Australia. Just over 2 years after arriving in Australia, on 4 January 2010 [the applicant]’s Subclass 457 visa was cancelled under s.116(1)(a) of the Act on the basis that the decision to grant him the visa was based wholly, or partly, on a particular fact or circumstance that no longer existed: he was no longer dependent on his father. [The applicant] told the Tribunal that he received a call from a case officer warning him of the impending cancellation of his Subclass 457 visa in early December 2009 and, when he told the case officer that his partner [Ms A] was pregnant with twins, the case officer told him to sort out the paperwork to apply for a Partner visa and the cancellation decision would be delayed until the New Year. [The applicant] said the timeframe was too short given the birth of the twins on [Date] and money was an issue. He was working at [a Workplace 1] at the time but it had closed down for the summer season and so the couple were short of money. Although he asked his parents for help, his relationship with his father had broken down by then. The result was that he did not lodge a Partner visa application before his Subclass 457 visa was cancelled. He did not obtain any immigration advice at the time, either from a registered migration agent or an immigration lawyer, and nor did he follow-up with the Department.
Decision
Reasons for decision
In the circumstances, the Tribunal finds that [the applicant] does not meet any one of the criteria in cl.050.212(3A) - (9) of Schedule 2 to the Regulations.Conclusion For the cumulative reasons set out above, [the applicant] does not meet cl.050.212(1) and, accordingly, he does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa. [the applicant]’s application is not an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. He is not a relevant eligible non-citizen as set out in cl.051.211 of Schedule 2 to the Regulations and, therefore, does not meet the requirements for the grant of that visa.Is this an appropriate case to refer to the Minister? Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of the possible exercise of his powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Further, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power after the Tribunal has made its decision, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act.[1] The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances. The circumstances which, according to the Minister’s Guidelines, may be unique or exceptional include, relevantly, where:§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§circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case (emphasis added). [1] Available at >Relevantly, the Minister has also indicated cases where it would be inappropriate to bring a matter to his attention. One such example is where:·the person’s review tribunal decision was in relation to the refusal or cancellation of a Bridging visa E.The Tribunal acknowledges that [the applicant]’s review application is in relation to refusal of a BVE and, further, he has already made 2 unsuccessful applications to the Minister for personal intervention pursuant to s.195A of the Act. This is the section which, as noted above, facilitates the Minister granting a visa to a detainee. However, it is clearly evident to the Tribunal that [the applicant] has not had the benefit of any professional advice in relation to either of his earlier applications to the Minister and, as such, the Minister has not had the opportunity to fully consider all of the relevant circumstances in this case. The Minister’s Guidelines also refer to other relevant information for consideration:·circumstances that may bring Australia’s obligations as a party to the Convention on the Rights of the Child (CROC) into consideration; and, ·circumstances that may bring Australia’s obligations as a party to the International Covenant on Civil and Political Rights (ICCPR) into consideration.Article 3 of the CROC provides: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. Further, Article 23.1 of the ICCPR provides: “The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State”. The Tribunal takes the issue of recommending referral of any case to the Minister seriously and only after very careful consideration having regard to the Minister’s Guidelines on Ministerial Powers. It notes that the theme running through the Minister’s Guidelines is that the case should involve unique or exceptional circumstances. In the circumstances of this case, the Tribunal has considered whether it would be in the best interests of [the applicant]’s family, in particular his [Age 2] year-old twin [children], that he be allowed to remain in Australia as the holder of a Partner Subclass 820 visa. The courts have been regularly called upon to consider the relevance of a child’s best interests: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA20 (Teoh) and Wan v Minsterfor Immigration & Multicultural Affairs [2001] FCA 568 (Wan). The Tribunal acknowledges that these cases deal with cancellation of a visa rather than refusal of a BVE: nonetheless, they relevantly address a matter of public interest: that is, the best interests of a child. In Teoh, the High Court was considering the importance of Australia ratifying international treaties, in particular, the CROC which give rise to a legitimate expectation that administrators - such as the Tribunal - will act in conformity with the Convention and treat the best interests of the child as a primary consideration. That case highlighted the importance of the proper consideration of the interests of a child by allowing an applicant to make appropriate submissions on the issue. Based on information available to the Tribunal, it is evident that [the applicant] has not been afforded the opportunity to make appropriate and full submissions to the Minister supported by robust evidence from him, his family including his twin [children], his partner, mother and siblings as well as others.The decision in Teoh is supported by the decision of the Federal Court in Wan which observes that, in order for the Tribunal to carry out its task with respect to the proper exercise of its discretion, the correct approach is to assess ‘whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration’.[2] The Tribunal understands this to mean that, in considering the best interests of the child as a primary issue, that test may - on its own - outweigh all other relevant facts and circumstances under consideration.[2] Branson, North and Stone JJ at [32]The Tribunal accepts that [the applicant] has a close relationship with his [children]. He told the Tribunal that he speaks with them at least every 3 days. As noted above, lodged with the Tribunal is signed letter from the Acting Principal of [School] in [City], [Ms B], and the school’s Community Liaison Officer, [Ms C], dated 9 September 2019. The letter confirms that, at that time, [the applicant] had 4 children attending the school related to him, his twin [children] [Child 1] and [Child 2], as well as 2 young step-[children] ([Ms A]’s [children]). The letter states as follows:When this father was still living at home, the attendance of these children was consistent and regular. [The applicant] either walked them to and from school each day, or bought them on bicycles. They were on time, and in the afternoons, [the applicant] was waiting in the school grounds for the bell to ring.In the period since [the applicant] has not been at home, attendance has dropped away considerably. When they do attend, there are regular late arrivals and they invariably have no food with them. In our opinion, [the applicant] is a consistent and loving father and step-father and the family are the poorer for his absence.Given the passage of time since the letter was written, a Tribunal officer contacted [Ms B] for updated comments. On the day of the hearing, [Ms B] recalled writing her earlier letter and said that [the applicant] is a lovely man. She also observed that the letter is still current apart from the fact that both the girls are now in grade [Number 2], one of the [other children] is in year [Number 3] and the other has gone to high school. [Ms B] added that the kids really miss him a lot and they are not as well cared for without him. This latter comment raised concerns for the Tribunal. The Tribunal is mindful that [the applicant] has a poor history of compliance with Australian immigration laws given he remained in Australia as an unlawful non-citizen following cancellation of his Subclass 457 visa on 4 January 2010. It accepts that the best interests of a child are a primary consideration and may outweigh other considerations in terms of deciding whether it should refer this matter to Minister. The Tribunal found [the applicant] to genuinely express concern that he would be removed from Australia pending approval of an offshore Partner visa. The factors which cumulatively engage the Tribunal’s consideration as to whether this is an appropriate case to refer to the Minister are as follows: ·[The applicant] has a strong connection with Australia having lived here for more than 13 years. In that time, he has been working and started a family here.·[The applicant] has 2 Australian citizen [children] whose mother is [of a specified heritage]. The Tribunal acknowledges, as discussed during the hearing, this information is yet to be confirmed by way of certified copy Birth Certificates. He also acts as a step-father to [Ms A]’s other minor children. [Ms A] and her children live in [Suburb], a suburb of [City]. ·Since the time when [the applicant] has been held in the [City] CC and subsequently in immigration detention it is evident based on the letter from the Assistant Principal of [School] that [Ms A] has struggled to ensure that her children attend school on a daily basis, arrive on time and even have lunch with them. The Australian Government has recognised the significant 20% gap in school performance between [indigenous children] and non-indigenous children.[3] A review by the Government’s Standing Committee on Aboriginal and Torres Strait Islander Affairs highlighted the correlation between low school attendance rates for Indigenous students and low levels of educational attainment.[4] The review also acknowledged advice from Associate Professor Richard Somerville from the Western Australian Department of Education that there is an absolute correlation between a child failing at school and a child entering the justice system.[5] [3] Australian Government, House of Representatives’ Standing Committee on Aboriginal and Torres Strait Islander Affairs, Enquiry into the high level of involvement of Indigenous juveniles and young adults in the criminal justice system, 20 June 2011, 5.70 Ibid 5.2Further, numerous academic studies have identified developmental vulnerabilities, especially an increased risk of antisocial behavior, in children who have a parent who is held in detention.[6] [6] See for example Murray, J., Farrington, D.P., and Sekol, I. “Children's Antisocial Behaviour, Mental Health, Drug Use, and Educational Performance After Parental Incarceration: A Systemic Review and Meta-Analysis”, (2012) Vol. 138 No. 2 Psychological Bulletin, 175 - 210·[The applicant]’s mother is an Australian citizen now aged [Age 4] who lives in [City]. His siblings also live in Australia. ·The Tribunal found [the applicant] to be a credible witness who speaks English fluently. He appeared genuinely concerned that, if he is returned to Ghana, he will need to wait offshore pending the outcome of an offshore Partner visa application and that this could be adverse to his [children’s] education and their well-being given their mother’s identified shortcomings as articulated by [Ms B].He admitted that until he went into detention he did not realise that he had an issue with alcohol although he did acknowledge that it had led to all of the issues that he has had with [Ms A] and which resulted in the 2 DVOs being issued to him and which, ultimately, saw him serve time in the [City] CC. He said the experience has totally changed his perspective about alcohol. He admitted making a big mistake (about drinking so much). Although he acknowledges his relationship with [Ms A] has had some issues in the past, they remain a couple and they are regularly in touch. Most of the issues in their relationship were related to his former alcoholism which, with the benefit of his time in detention, he has now completely moved on. He reiterated making some big mistakes in the past and being regretful.·[The applicant] has worked in Australia to support his family and has evidence of Tax Assessment Notices issued by the ATO to confirm his payment of tax. He said that he could provide this evidence to the Department to on- forward to the Minister. ·[The applicant] told the Tribunal that he did not fully understand the information set out in the VIN even though he signed off on it. He did not really understand the impact of the bar in s.195 of the Act. ·[The applicant] has not had the benefit of professional advice to assist with any of his applications to the Minister under s.195A of the Act. ·[Ms A] and [the applicant] have not yet reached out to a range of organization which may be able to assist collate documentation in support of this referral by the Tribunal to the Minister under s.351 of the Act. Such organizations include:o[Charity] which, co-incidentally, is based at [the] School attended by [the applicant]’s 2 [children] and his step-children. [Charity] is [detail deleted];[7] o[Community group];[8] and,opro bono legal or immigration service providers such as the Refugee and Immigration Legal Service based in Brisbane.[9] ·The current COVID-19 pandemic has meant that international travel to facilitate lodgement offshore of a Partner visa application may not be possible for many months. Furthermore, even once such travel resumes, quarantining overseas will come at considerable cost to the traveller. In addition, returning [the applicant] to Ghana may expose him to a higher risk of exposure to COVID across parts of the African continent when compared with that in Australia. [7] [Reference deleted][8] [Reference deleted] [9] >Having regard to the circumstances of this case, the Tribunal considers that this situation involves unique or exceptional circumstances. Balancing the integrity of the migration program with the interests of [the applicant] and his family, in particular his twin [Age 2] year-old [children], the Tribunal considers that it would be appropriate to make a referral to the Minister. The Tribunal therefore requests this case be brought to the attention of the Minister in order for him to consider exercise of his discretionary intervention powers under s.351 of the Act. It is anticipated that [the applicant], his close and extended family members in Australia as well as members of the community may wish to lodge documentation in support of this referral. The Tribunal notes [the applicant] acknowledged at the hearing that it is up to him - ideally with professional advice from an immigration lawyer/registered migration agent or a community organisation such as [Charity] or the [Community group] - to collate appropriate robust evidence in support of this referral to the Ministerial intervention.DECISION The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.Katie MalyonMemberAttachment – Extract from the Migration Regulations 1994SUBCLASS 050 - BRIDGING (GENERAL)050.1 Interpretation Note: Compelling need to work and criminal detention are defined in regulation 1.03. For eligible non-citizen see regulation 2.20. Tribunal is defined in subsection 5(1) of the Act. There are no interpretation provisions specific to this Part.050.2 PRIMARY CRITERIANote: All applicants must satisfy the primary criteria.050.21 Criteria to be satisfied at time of application050.211 (1) The applicant is:(a) an unlawful non-citizen; or(b) the holder of a Bridging E (Class WE) visa; or(c) the holder of a Subclass 041 (Bridging (Non-applicant)) visa.(2) The applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17).050.212 (1) The applicant meets the requirements of subclause (2), (3), (3A), (4), (4AAA), (4AA), (4AB), (5), (5A), (5B), (6), (6AA),(6A), (6B), (7), (8) or (9). (2) An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.(3) An applicant meets the requirements of this subclause if: (a) the applicant has made, in Australia , a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined; or(b) the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.(3A) An applicant meets the requirements of this subclause if: (a) the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and(b) either:(i) the applicant has applied for judicial review of a decision to refuse to grant the visa and the judicial proceeding (including any proceedings on appeal) have not been completed; or(ii) the Minister has applied for judicial review of a decision in relation to a refusal to grant the applicant’s substantive visa, and the judicial review proceeding (including any proceedings on appeal) have not been completed.(4) An applicant meets the requirements of this subclause if: (a) the applicant has applied for judicial review of a decision in relation to a substantive visa, other than a decision to refuse to grant a visa; or(aa) the Minister has applied for judicial review of a decision in relation to the applicant’s substantive visa application, other than a decision relating to a refusal to grant the substantive visa; or (b) the applicant has applied for merits review of a decision to cancel a visa; or(ba) the applicant has applied under section 137K of the Act for revocation of the cancellation of a visa; or(bb) the applicant has applied for merits review of a decision under section 137L of the Act not to revoke the cancellation of a visa; or(c) the Minister is satisfied that the applicant will make an application of a kind referred to in paragraph (b), (ba) or (bb); or(d) the applicant has applied for judicial review of the validity of a law that affects:(i) the applicant's eligibility to apply for a substantive visa; or(ii) the applicant's entitlement to be granted or to continue to hold a substantive visa.(4AAA) An applicant meets the requirements of this subclause if the applicant has applied for: (a) a declaration from a court that the Act does not apply to the applicant; or(b) judicial review or merits review of a decision made in relation to the applicant under the Australian Citizenship Act 2007; and the proceedings for the declaration or review have not been completed.(4AA) An applicant meets the requirements of this subclause if: (a) the applicant is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in:(i) paragraph (3A)(b); or(ii) paragraph (4)(a); or(iii) paragraph (4)(aa); or(iv) paragraph (4)(d); and(b) the person whose substantive visa application is the subject of the judicial review proceedings is not a party to a representative proceeding; and(c) the applicant made a substantive visa application that was combined with the substantive visa application mentioned in:(i) paragraph (3A)(a); or(ii) subclause (4).(4AB) An applicant meets the requirements of this subclause if the applicant is: (a) a member of the immediate family of a person who meets the requirements of subclause (4AAA); or(b) a brother or sister who has not turned 18, of a person who:(i) meets the requirements of subclause (4AAA); and(ii) has not turned 18.Note: Regulation 1.12AA defines member of the immediate family.(4A) For the purposes of subclauses (3A), (4) and (4AAA), the applicant is taken to have applied for judicial review if the applicant: (a) is described or identified, in an application or document filed for the purposes of section 33H of the Federal Court of Australia Act 1976, as a group member to whom a representative proceeding relates; or(b) is a person on whose behalf or for whose benefit a person sues under rule 21.09.1 of the High Court Rules.(5) An applicant meets the requirements of this subclause if: (a) he or she held a visa that was cancelled under subsection 140(1) or (3) of the Act (which deals with cancellation because of the cancellation of a visa held by another person); and(b) either:(i) the other person whose visa was cancelled has applied for review of the decision to cancel his or her visa; or(ii) the Minister is satisfied that that other person will make an application of that kind.(5A) An applicant meets the requirements of this subclause if: (a) the applicant held a visa that was cancelled under subsection 140(1), (2) or (3) of the Act because another person’s visa was cancelled under section 137J of the Act; and(b) one of the following applies in relation to the person whose visa was cancelled under section 137J of the Act:(i) he or she has applied under section 137K of the Act for revocation of the cancellation of the visa;(ii) he or she has applied for merits review of a decision under section 137L of the Act not to revoke the cancellation of the visa;(iii) the Minister is satisfied that he or she will make an application of a kind mentioned in subparagraph (i) or (ii).(5B) An applicant meets the requirements of this subclause if the applicant:(a) is a person to whom section 48A of the Act applies; and(b) has made a request to the Minister to determine under section 48B of the Act that section 48A of the Act does not apply to prevent an application for a protection visa by the applicant; and(c) has not previously sought, or been the subject of a request by another person for:(i) a determination under section 48B of the Act; or(ii) the exercise of the Minister's power under section 345, 351 or 417 of the Act.(6) An applicant meets the requirements of this subclause if: (a) the applicant is the subject of:(i) a decision in relation to an application made in Australia for a visa; or(ii) a decision to cancel a visa; and(b) in relation to the decision mentioned in paragraph (a), the applicant:(i) is the subject of a decision for which the Minister has the power to substitute a more favourable decision under section 345, 351 or 417 of the Act; and(ii) has made a request to the Minister to substitute a more favourable decision under section 345, 351 or 417 of the Act; and(c) the applicant has not previously sought, or been the subject of a request by another person for:(i) the exercise of the Minister’s power under section 345, 351 or 417 of the Act; or(ii) a determination under section 48B of the Act.(6AA) An applicant meets the requirements of this subclause if the Minister has decided, under section 345, 351 or 417 of the Act, to substitute a more favourable decision for the decision of the Tribunal but the applicant cannot, for the time being, be granted a substantive visa because of a determination under section 85 of the Act. (6A) An applicant meets the requirements of this subclause if: (a) the applicant holds a Bridging E (Class WE) visa granted on the basis of the applicant meeting the requirements of subclause (6AA); and(b) the Minister has decided, under section 345, 351 or 417 of the Act, to substitute a more favourable decision for the decision of the Tribunal but the applicant cannot, for the time being, be granted a substantive visa because of a determination under section 85 of the Act; and(c) the Minister is satisfied that the applicant has a compelling need to work.(6B) An applicant meets the requirements of this subclause if: (a) the applicant holds, or has held, a Bridging E (Class WE) visa granted before 1 July 2009 on the basis of the applicant meeting the requirements of subclause (6) or (6A); and (b) the applicant is the subject of a decision for which the Minister has the power to substitute a more favourable decision under section 345, 351 or 417 of the Act; and(c) before 1 July 2009, the applicant made a request to the Minister to substitute a more favourable decision under section 345, 351 or 417 of the Act; and(d) the Minister has not yet made a decision to substitute a more favourable decision under section 345, 351 or 417 of the Act.(7) An applicant meets the requirements of this subclause if: (a) the applicant is in criminal detention; and(b) no criminal justice stay certificate or criminal justice stay warrant about the applicant is in force.(8) An applicant meets the requirements of this subclause if: (a) the applicant holds a Bridging E (Class WE) visa that:(i) was granted as a result of a valid application, made in Australia for a substantive visa of a kind that could be granted if the applicant wasin Australia; and(ii) is subject to condition 8101; and(b) the Minister is satisfied that the applicant has a compelling need to work; and(c) in the case of an applicant who was an applicant for a protection visa — either:(i) the reasons for the delay in making the application for a protection visa are acceptable to the Minister; or(ii) the applicant is in a class of persons specified by the Minister by instrument in writing for this subparagraph.(9) An applicant meets the requirements of this subclause if: (a) the applicant has made a valid application for a Partner (Migrant) (Class BC) visa; and(b) that application was refused; and(c) either:(i) the applicant, or the Minister, has applied, within statutory time limits, for judicial review of a decision in relation to the applicant’s substantive visa application; or(ii) the applicant:(A) is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in subparagraph (i); and(B) made a substantive visa application that was combined with the substantive visa application mentioned in subparagraph (i);and the applicant or family unit member does not satisfy the criterion in paragraph 010.211(6)(c) for the grant of a Bridging A (Class WA) visa; and(d) the judicial review proceedings (including proceedings on appeal, if any) are not completed. 050.22 Criteria to be satisfied at time of decision 050.221 The applicant continues to satisfy the criteria set out in clauses 050.211 and 050.212.…oOOo
Ratio Decidendi
Legal Principle Established
The issues in this case are whether, at the time of application on 30 January 2021, [the applicant] met cl.050.212(1) because he satisfied one of the alternative criteria set out in cl.050.212(2) - (9) of Schedule 2 to the Regulations and, if so, whether he continues to meet that criterion at the time of this decision as required by cl.050.221 of Schedule 2 to the Regulations.Immigration history During the hearing, the Tribunal discussed with [the applicant] his immigration history in Australia as well as key events that have taken place since his arrival. Based on available information - including not only the Department’s Movement Records but also the delegate’s decision record provided to the Tribunal - the Tribunal indicated that it had compiled a chronology of [the applicant]’s migration background in Australia. It noted the Tribunal would ask him to confirm whether the information as compiled was correct and invite his comments on some of the events and persons identified. [The applicant] confirmed that the following is an accurate record of his migration history and background in Australia. [In] December 2007, [the applicant] arrived in Australia as the holder of a secondary Subclass 457 visa. At the time, he was [Age 1] years old. [The applicant]’s father had been sponsored to work as [an Occupation] by publicly listed company [Company name]. [Company name] successfully nominated not only [the applicant]’s father and his mother but also the couple’s 3 adult children. [The applicant] explained that, at the time, he and his siblings were dependent on their parents. He has not left Australia since his arrival just before Christmas in 2007. [The applicant]’s father applied for an Employer Nomination Scheme Subclass 856 visa nominated by [Company name] but the company withdrew its nomination on 19 June 2009 when it realised the adult children had been included. Subsequently, [the applicant]’s parents were granted permanent residence nominated by [Company name] and have since acquired Australian citizenship. His parents have divorced. His father has returned to Ghana and remarried. [The applicant]‘s mother continues to live in [City] where his [Age 2] year-old twin [children], [Child 1] and [Child 2], live with their mother, [Ms A]. [Ms A] is an Australian citizen of [Specified] heritage. [The applicant]‘s siblings also continue to live in Australia. Just over 2 years after arriving in Australia, on 4 January 2010 [the applicant]’s Subclass 457 visa was cancelled under s.116(1)(a) of the Act on the basis that the decision to grant him the visa was based wholly, or partly, on a particular fact or circumstance that no longer existed: he was no longer dependent on his father. [The applicant] told the Tribunal that he received a call from a case officer warning him of the impending cancellation of his Subclass 457 visa in early December 2009 and, when he told the case officer that his partner [Ms A] was pregnant with twins, the case officer told him to sort out the paperwork to apply for a Partner visa and the cancellation decision would be delayed until the New Year. [The applicant] said the timeframe was too short given the birth of the twins on [Date] and money was an issue. He was working at [a Workplace 1] at the time but it had closed down for the summer season and so the couple were short of money. Although he asked his parents for help, his relationship with his father had broken down by then. The result was that he did not lodge a Partner visa application before his Subclass 457 visa was cancelled. He did not obtain any immigration advice at the time, either from a registered migration agent or an immigration lawyer, and nor did he follow-up with the Department.