2101274 (Migration)

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 affirmed
LEGISLATION
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), 050.221
CASES
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 568
Any 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 meet any of the time of application requirements in cl.050.212(2) - (9) of Schedule 2 to the Regulations (emphasis added).In his application form he indicated that he intended to apply for an onshore Partner visa. This was confirmed in his interview with the delegate on 2 February 2021. However, as [the applicant] was detained on 3 June 2019 the timeframe to make such an application had passed and a s.195 statutory bar was in effect such that he cannot apply. No other requirements were met. [The applicant] is seeking review of that decision. A copy of the delegate’s decision set out in the Form 1211 Record and notice of decision Bridging Visa E – subclass 050 was provided to the Tribunal.
[The applicant] appeared before the Tribunal on 11 February 2021 to give evidence and present arguments. The hearing was held by way of videoconference given [the applicant]‘s location [in Detention Centre 1]. [The applicant][the applicant] was not represented in relation to the review.
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.
Following cancellation of his Subclass 457 visa, [the applicant] remained in Australia as an unlawful non-citizen. Some 9 years later, he was taken into custody by the Queensland Police following some unfortunate incidents involving his partner at their home which have left him with a criminal record. The Tribunal notes some details of [the applicant]’s charges and convictions were disclosed in his BVE application lodged on 30 January 2021.
During the hearing, [the applicant] gave the following account of incidents involving the Queensland Police:
1)[August] 2016 - charged with common assault of [Ms A]. A Domestic Violence Order (DVO) was made under the Domestic and Family Violence Protection Act 2012 (Qld). No conviction was recorded but he was fined [Amount 1];
2)[August] 2018 – charged with stealing [Amount 2] from [Ms A]’s bank account. [Details deleted] So, he decided to take money out of her account. She called the police and they came the next day. He admitted stealing the money but immediately refunded the [Amount 2] cash to her. No conviction was recorded but [the applicant] was fined [Amount 3] and a second DVO was made;
3)[September] 2018 - charged with contravention of a DVO. He had an argument with [Ms A] due to being intoxicated at the time. Prior to his parent’s divorce in 2014 alcohol had never been a problem. No conviction was recorded;
4)[December] 2018 - again charged with contravention of a DVO. While no conviction was recorded, he was required to complete [Number] hours of community service; and,
5)[January] 2019 - charged with and convicted, [in] February 2019, of contravention of a DVO. As a result, he spent about [Number] months in the [City Correctional Centre].
[In] June 2019, [the applicant] was released from the [City] CC and detained under s.189(1) of the Act at the [City] Watchhouse. When he was taken into detention, [the applicant] was provided with a Form 1423 Very Important Notice (VIN). Prior to the hearing, the Tribunal forwarded to [the applicant] a copy of the VIN from the Department’s file. He confirmed the VIN provided by the Tribunal bears his signature and that he signed the VIN at 19:30 (that is, 7:30 pm) on 3 June 2019 as indicated in the VIN. The Tribunal notes a VIN is required to be provided to a detainee as soon as reasonably practicable after their detention: s.194 of the Act. This is necessary so that a detainee is aware s/he has only 2 working days to apply for a visa or, within those 2 days, to indicate in writing their intention to apply for a visa within the next 5 working days and then apply for the visa within the 5 working days: s.195(1) of the Act. Relevantly, if a detainee does not apply for a visa within the time allowed, they are precluded from applying for any visa other than a Bridging visa or a Protection visa after that time: s.195(2) of the Act.
[The applicant] told the Tribunal that, after 2 days, he was transferred from the [City] Watchhouse to [Detention Centre 2]. He has not seen [Ms A], his [children] and [Ms A]’s other children face-to-face since he left [City].
While at [Detention Centre 2], [the applicant] said an officer asked him about his passport as he was about to be returned to Ghana. He told the officer his passport had expired.
As set out in the delegate’s decision the subject of this review, on 30 September 2019 the Department confirmed that [the applicant]’s inclusion in his father’s Subclass 856 visa remained outstanding. This is despite withdrawal of the nomination by [Company name] on 19 June 2009 and then withdrawal by [the applicant]’s parents of their related Subclass 856 visa applications on 24 July 2009. On 15 October 2019, [the applicant] completed a Form 1446 to withdraw his Subclass 856 visa application. The withdrawal was finalised by the Department on 6 November 2019.
On 25 October 2019, [the applicant] applied to the Minister to grant him a visa pursuant to s.195A of the Act. The Minister may, if the Minister thinks it is in the public interest to do so, grant a detainee a visa of a particular class, whether or not the person has applied for the visa: s.195A(2) of the Act. [The applicant]’s application to the Minister was unsuccessful. He told the Tribunal the only document lodged in support of the application was a letter from his [children’s] school Assistant Principal. At the time, the [children] were in grade [Number 1].
[The applicant] was transferred to [Detention Centre 3] [in] December 2019. Subsequently, he applied for a BVE but this was refused on 24 March 2020. He made a second BVE application but this was refused on 28 April 2020. [The applicant] applied again to the Minister under s.195A of the Act on 9 July 2020 for the Minister to grant him a visa but this application was not referred to the Minister consistent with Departmental policy. A third BVE application was refused on 10 July 2020.
[In] August 2020, [the applicant] was transferred to [Detention Centre 1]. As noted above, he lodged his fourth BVE application - the application the subject of this review – on 30 January 2021.
During the hearing, the Tribunal also discussed with [the applicant] the delegate’s record of interview held on 2 February 2021, details of which are recorded in the delegate’s decision provided to the Tribunal. The purpose behind such an interview is to obtain further information about an applicant’s personal circumstances to further assess their BVE application.
The delegate notes [the applicant] said at the interview that he had applied for his BVE on the grounds that he will apply for a substantive visa, namely, an onshore Partner visa. Further, the delegate adds that [the applicant] definitively stated he had no intention of departing Australia. In response to the delegate’s observation that he could apply offshore for a Partner visa, [the applicant] responded that he was not interested in this as it would be too difficult for him to depart Australia and leave his family. He told the Tribunal that he has reached out to his siblings for help with funds to lodge a Partner visa application as [Ms A] is working in a [Workplace 2] in [City] and has limited funds available to assist him as she is supporting not only their twin [children] but also some of her other children including a [Age 3] year-old who is currently at high school in [City].
Having had the opportunity to hear [the applicant]’s oral evidence by way of video, the Tribunal found him to be a credible person about the matters about which he gave oral evidence. He admitted he could, and should, have been much more proactive on the basis “If it is for me, it is up to me”. [The applicant] told the Tribunal he maintains really regular contact with his family and he chats with his [children] at least every 3 days. He reflected he made a big mistake in not lodging a Partner visa application around the time of his twin [children’s] birth in [City] on [Date] and added it was difficult because of the costs and tight timeframe involved given birth of his twins as well as the fact that the [Workplace] where he was working had closed for the summer period as it did every year.
Does the applicant meet the requirements of cl.050.212?
As noted above at para [7], at the time of the visa application the applicant must meet one of the alternative grounds set out in cl.050.212(2) - (9) of the Regulations. In addition, the applicant must continue to satisfy this criterion at the time of decision: cl.050.221 of the Regulations.
During the hearing, the Tribunal explained this requirement to [the applicant]. It also observed that whether he meets any of the criteria in cl.050.212(2) - (9) is not a matter in which the Tribunal can exercise its discretion: rather, it must apply the law.
The Department’s file contains a copy of [the applicant]’s online Application for a Bridging visa E. In response to the question as why he was applying for a BVE, [the applicant] entered [Application for a substantive visa] from the drop-down menu of options. He reiterated during the hearing that it was his plan at the time he applied for the BVE to apply for a Partner visa. [The applicant] observed that it was not until the Tribunal had explained the impact of the bar in s.195 of the Act that he understood that this was not an option. He acknowledged that, after he was detained on Monday 3 June 2019, he did not apply for a Partner visa (or any other visa) either:
·within 2 working days - that is, by Wednesday, 5 June 2019 as required by s.195(1) of the Act; or,
·after informing an officer in writing within those 2 working days (that is, by 5 June 2019) of his intention to apply for a visa and do so within the next 5 working days (by Wednesday, 12 June 2019).
For the reasons below, [the applicant] does not meet cl.050.212 of the Regulations.
Acceptable arrangements to depart Australia: cl.050.212(2)
Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The Department’s Procedures Advice Manual 3 (PAM3), whilst not binding on the Tribunal, nevertheless provides some guidance: Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart were genuine: Lin at [30].
From the evidence before it, the Tribunal finds that [the applicant] has not taken any steps whatsoever to explore departing Australia. Further, there is no information before the Tribunal that, at the time of application, he was the subject of any arrangements to depart. On the contrary, as reported in delegate’s decision (a copy of which o was provided to the Tribunal) he clearly denied any intention to make arrangements to depart Australia in his interview with the delegate on 2 February 2021. [The applicant] expressed a desire then to remain in Australia so that he could be close to his [children] and [Ms A]. He echoed this sentiment during the hearing.
For these reasons, the Tribunal is not satisfied that, at the time of application, [the applicant] was making, or was the subject of, acceptable arrangements to depart Australia. Accordingly, he does not meet cl.050.212(2) of Schedule 2 to the Regulations.
Substantive visa application
Subclause 050.212(3) is met if 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 the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.
The term ‘substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act.
The only pending application that [the applicant] had at the time of his detention was his Subclass 856 visa application where he had been included as a secondary applicant in his father’s Subclass 856 visa application. However, as noted above, [Company name] withdrew its application nominating [the applicant]‘s father for permanent residence pursuant to the Employer Nomination Scheme and, subsequently, [the applicant]’s father withdrew the Subclass 856 visa application of himself and his wife nominated by [Company name]. They pursed a separate pathway to successfully obtain permanent residence. [The applicant] formally withdrew his Subclass 856 visa application on 22 October 2019.

As noted above, [the applicant] was detained on 3 June 2019. He was provided with a VIN on that date and confirmed, at the hearing, that he signed off on his VIN at 7:30 pm on Monday 3 June 2019. Accordingly, he was required by Wednesday 5 June 2019 to either: make a valid visa application; or, in the alternative, request in writing an extension of time to do and then make a valid visa application by Wednesday 12 June 2019. [The applicant] confirmed that he did not make a Partner visa application, or indeed any visa application on or before midnight on 5 June 2020 and nor did he request in writing an extension of time to do so until 12 June 2019. He admitted he did not apply for any onshore visa application within the permitted timeframe.
In the circumstances, the Tribunal is not satisfied that [the applicant] meets cl.050.212(3) of the Regulations.
Consideration of alternative criteria in cl.050.212(3A), (4), (4AAA), (4AA), (4AB), (4A), (5), (5A), (5B), (6AA), (6A), (6B), (7), (8) and (9)
There is no information or evidence before the Tribunal that, at the time of application, [the applicant]’s circumstances were such that he would have met any one of the alternative criteria set out in cl.050.212(3A), (4), (4AAA), (4AA), (4AB), (4A), (5), (5A), (5B), (6AA), (6A), (6B), (7), (8) and (9) of Schedule 2 to the Regulations.
In his online Application for a Bridging visa E, the only selection made by [the applicant] from the drop-down menu as the reason for his lodging his BVE application was [Application for a substantive visa]. He did not select other options available despite being invited to select all options that apply in his case. The other options are [Ministerial Intervention], [Judicial review], [Review of a decision to cancel a visa] and [Making arrangements to depart Australia]. [The applicant] confirmed a hearing that none of these alternative options applied in his case.
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 5.2

Further, 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 Malyon

Member
Attachment – Extract from the Migration Regulations 1994
SUBCLASS 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 CRITERIA
Note: All applicants must satisfy the primary criteria.
050.21 Criteria to be satisfied at time of application

050.211 (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

[2021] AATA 383

12 February 2021

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