2101274 (Migration)

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.