2109047 (Migration)

2109047 (Migration) [2021] AATA 3422 (12 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2109047
MEMBER:De-Anne Kelly
DATE:12 August 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 12 August 2021 at 1:33pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – compliance with conditions and acceptable arrangements to depart Australia – requirement of a security – visa history, including unsuccessful application for protection visa, applications for bridging visas and periods as unlawful non-citizen – criminal offences, imprisonment and immigration detention – no arrangements to depart while High Court application in progress – removal as soon as practicable – travel restrictions and arrangements by home country and Australia – non-refoulement – general economic conditions – offers of support by brother and employers – hardship to wife and children – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), (9), 36, 48, 48A, 48B, 73, 189, 195, 197, 197C, 198, 269, 376, 501CA(4)
Migration Regulations 1994 (Cth), rr 1.03, 1.09, Schedule 2, cls 050.211(1), 050.212(2)-(9), 050.221, 050.223, 050.224, Schedule 8, condition 8564
CASES
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
WKMZ v MICMSMA [2021] FCAFC 55
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K 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 Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act) and a decision made by an authorised officer relating to requiring a security under s 269 of the Act.
The applicant applied for the visa on 3 July 2021. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, which are set out in Part 050 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria include cl 050.223 and cl 050.212(2) – (9).
The decision to refuse to grant the visa was made on 14 July 2021 on the basis that the delegate was not satisfied that the applicant satisfied cl.050.223 since he was not satisfied he would abide by Condition 8564 – Must not engage in Criminal conduct and further was not satisfied he met the requirements of cl.050.212(2) because there was no evidence before the delegate that the applicant was making or was the subject of making acceptable arrangements to depart Australia.
The applicant appeared before the Tribunal on 2 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
[Mr A], [Mr B] and [Mr C] were listed as witnesses.
The hearing was originally scheduled for 22 July 2021. The applicant was self-represented however an email dated 20 July 2021 from [Mr D], Barrister at Law advised he had been engaged by the applicant and requested an adjournment of two weeks to properly review the matter and present evidence. The Tribunal granted the adjournment. The registry telephoned the Barrister and asked him to complete form MR 5 & 6 authorising the Tribunal to share details of the case with him. He advised that these forms would be submitted that morning however it is noted that no such forms were received and as such the Tribunal continued to forward correspondence directly to the applicant.
On the morning of the hearing on 2 August 2021, some 15 minutes before the hearing commenced at 9.30am the Barrister submitted a written statement and requested an adjournment until 2.30PM AEST on the basis that he was presently in [Town] Western Australia and could only access a video conference facility at a local community centre later in the day at 2.30PM. The Tribunal emailed the Barrister again requesting that Forms authorising him to act for the applicant be completed and forwarded to it. The Tribunal granted the adjournment to 2.30PM on 2 August 2021.
The Tribunal granted a further hearing on 9 August 2021 in order for witnesses as above to be heard. It was agreed between the parties that a decision would be made on 12 August 2021 or three days following the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Interpretation
Twice during the first hearing, the Tribunal asked the applicant if he could understand the interpretation. He responded that he could understand, and this was evidenced by clear and appropriate responses to questions. The same interpreter attended the second hearing and again the Tribunal asked if the interpretation was clear and the applicant confirmed he could understand the interpretation.
Certificate s376
The Tribunal disclosed to the applicant a s376 Certificate which related to internal documents from Australian Border Force which appeared to be valid to the Tribunal. The Tribunal invited the applicant to comment on the validity of the documents and they could have a adjournment if they requested it to consider the information. The certificate covered the following documents which the Tribunal gave the gist of the information covered in the documents as below. On 6 August the Tribunal emailed a copy (redacted) of the Certificate to the applicant and invited him to comment on the validity. No response has been received to date.
1)Record and Notice of Decision - Bridging Visa E dated 3 July 2021.
2)Notification of refusal of application for Bridging E (Class WE) Visa dated 14 July 2021 including Attachment A – Question 9 – Form 1211.
3)NSW Police Report on the applicant.
Familiar with the documents.
Documents including the following were provided as well as documents listed in the review application form and described in (a) to (k).
a.File:26.6.18 Defence Bundle on Sentence.pdf;
b.[Ms E].pdf;
c.Community Support.pdf;
d.Document (1).pdf;
e.image_123927839.JPG;
f.[F].pdf;
g.letter.pdf:
h.low_res_mono_BW1014.PDF;
i.[Mr C].pdf;
j.WhatsApp Image 2021-07-12 at 17.55.31.jpeg;
k.Notification and decision for Department (Interviews).
Documents including the following were provided and considered.
1)Psychologist Report under the hand of [Mr G].
2)Psychologist Report under the hand of [Ms H].
3)Psychologist Report under the hand of [Mr I].
4)Letter from [Ms J] (the applicant’s wife).
5)Letter date 9 July 2021 from the applicant to the Department.
6)Letter from [Dr K] dated 16 June 2021, regarding treatment of the applicant’s wife.
7)Character reference under the hand of [L].
8)Character reference from [Mr C] (the applicant’s brother).
9)Character reference from [Mr B] of [Company 1].
10)Record and Notice of Decision - Bridging Visa E dated 3 July 2021.
11)Notification of refusal of application for Bridging E (Class WE) Visa dated 14 July 2021 including Attachment A – Question 9 – Form 1211.
12)Bank statement for [Company 1].
13)Letter of support 7 July 2021, from [Ms E].
14)Letter of support 8 July 2021 from [Organisation].
15)Letter of support 10 July 2021 from [F].
16)Letter of support from [Mr A].
17)Letter of support dated 6 July 2021 from [F].
18)Two (2) letters from the applicant to the Department.
19)Letter from Medical Centre regarding psychological treatment for the applicant’s wife.
20)Letter of support undated from [Mr C].
21)Bank statement for [Mr A] showing balance of some $2,000.
22)Bank statement for [Company 2] showing balance of $9,000.
23)Video of (applicants) two young children in bed saying they want their Father back home and they want him to take them to school and they love him.
24)Letter of support undated from [Mr B], Director of [Company 1].
25)Notification Assessment Record from the Department.
26)Property inventory and Information about detention.
27)Located Person Interview.
28)Online application for Bridging visa E dated 3 July 2021.
29)Notification of refusal of an application for a Bridging E (Class WE) visa including Notice of Decision.
30)NSW Police report.
31)Transcript of interview with applicant and Department dated 6 July 2021.
Documents including the following were submitted on the morning of the first hearing.
32)Barrister - “Applicants Statement of facts, issues and contentions”.
33)Form authorising the barrister to represent the applicant.
34)Barristers - “Applicant’s Supplementary Submissions”.
Background.
[The applicant] is currently an unlawful non-citizen held in detention on Christmas Island. He was detained on 2 May 2018 pursuant to removal to Lebanon following his term of imprisonment and was detained at Christmas Island Detention Centre on 13 September 2020 for the purpose of removal where he remains.
The applicant is a national of Lebanon and the eldest of four (4) boys. The applicant has a Father and brother in Australia, the former is married with a young child while the latter has a [business]. The applicant has a Mother and younger brother in Lebanon with the former battling breast cancer and the young brother attending school. The applicant was sponsored on a family visa to Australia in 2009. While on holiday in Lebanon, [Ms J] met the applicant who is now her husband.
The couple approached her family in Australia for their blessing to marry however the family were against the couple marrying. In a fracas with his wife’s family the applicant was stabbed in the forearm. This injury together with the death in 2015 of another brother in Lebanon in a vehicle accident have resulted in a diagnosis in 2018 of Adjustment Disorder with mixed anxiety and depressed Mood and provisionally meeting the diagnosis of PTSD. It is noted that this diagnosis was undertaken some three (3) years ago.
The couple are married and have a young daughter and son. The couple have struggled financially without support form [Ms J]’s family. She was diagnosed with Major Depressive Disorder (MDD) and Separation Anxiety Disorder (SAD) and she is unable to support herself and her children as a result of her psychological condition. The applicant initially worked as [an Occupation] but for several years has been on bridging visas without permission to work.
The applicant first entered Australia on 14 July 2009 holding a UL-679 Sponsored Family Visitor visa that was valid to 14 November 2009. The applicant subsequently held other visas, including a further Sponsored Family Visitor visa, Visitor visa (FA-600), and 8 bridging visas following the cessation of the visitor visa. The applicant had been unlawful during the following periods 14 to 27 July 2016, 29 to 30 October 2016, 25 January 2017 to present and was not located and detained pursuant to s.189 of the Migration Act until 2 May 2018.
The applicant has applied for a Protection visa (XA-866) which was refused by a delegate of the Department. The applicant sought a review by the Tribunal of this decision which was affirmed on 24 August 2015. The applicant made a request under s 48B of the Act however that was unsuccessful in December 2018.
The applicant had a “no further stay” condition attached to his visas since 2013 other than when he applied for the protection visa in 2014/2015. He applied for Ministerial Intervention which was declined in March 2018.
While detained, the applicant has applied for bridging visas and sought reviews of decisions to refuse the grant of these by the delegate. For the refusal decision of the delegate dated 11 May 2020, the applicant applied to the Tribunal on 13 May 2020 but later withdrew this application on the same day.
For the refusal decision of the delegate to grant a bridging visa dated 12 November 2020, the applicant applied to the Tribunal for a review of that decision on 13 November 2020 which was ultimately affirmed on 24 November 2020.
The applicant applied for a further bridging visa WE (050) on 3 July 2021 which was refused on 14 July 2021 and that is the review application that is the subject of this case.
Migration History
[July] 2009Arrived on a Sponsored Family Visitor visa Subclass UL 679 valid to 12 Oct 2009
[Oct] 2009       Departed Australia.
[May] 2011Arrived on a Sponsored Family Visitor visa Subclass UL 679 valid to 14 Aug 2011.
[Aug] 2011      Departed Australia.
[Dec] 2013Arrived on a Sponsored Family Visitor visa Subclass UL 679 valid to 24 Apr 2014.
8 Apr 2014      Granted a Bridging visa A WA 010 valid to 21 Sep 2015.
12 Nov 2015    Granted a Bridging visa E WE 050 valid to 10 Dec 2015.
18 Dec 2015    Granted a Bridging visa E WE 050 valid to 5 Jan 2016.
5 Jan 2016      Granted a Bridging visa E WE 050 valid to 12 Feb 2016.
12 Feb 2016    Granted a Bridging visa E WE 050 valid to 15 Apr 2016.
15 Apr 2016    Granted a Bridging visa E WE 050 valid to 13 July 2016.
28 Jul 2016     Granted a Bridging visa E WE 050 valid to 28 Oct 2016.
31 Oct 2016      Granted a Bridging visa E WE 050 valid to 25 Jan 2017.
14 Feb 2017    Granted a Bridging visa E WE 050 valid to 16 May 2017.
15 May 2017     Granted a Bridging visa E WE 050 valid to 16 Aug 2017.
16 Aug 2017    Granted a Bridging visa E WE 050 valid to 14 Feb 2018.
16 Feb 2018    Granted a Bridging visa E WE 050 valid to 14 Mar 2018.
From 14 Mar 2018 to present day – no visa held.
The Hearing
In the hearing the Tribunal took the applicant through his migration history and briefly through his criminal history and confirmed that it was accurate.
The criminal history of the applicant includes several driving offences including drink driving which attracted fines, disqualification and a bond from 15 April 2017 to 27 June 2017. The applicant was also convicted of “Deal with property of proceeds of crime “and convicted of recklessly deal with proceeds of crime” and sentenced to 18 months imprisonment suspended for a bond.
It then took the applicant through the various subclauses of Subclass 050 – Bridging visa (General) cl 050.212(2) to (9) and cl 050.233 as below to determine whether they were satisfied by the applicant.
The Tribunal asked why the applicant wanted to be granted a bridging visa. He explained that he wanted to leave “here” and go back to his family and show them he was not going to make the same mistakes and show his kids he would not make the same mistakes again.
The Tribunal noted “The Psychological Report by [Ms H]” dated 25 March 2018 which concludes that the applicant has PTSD from a knife wound inflicted by the family of his wife and the death of his brother in Lebanon from a car accident. He also suffers from anxiety and depression. The report concluded that he was a low to moderate risk of recidivism. These reports are some three years out of date and were prepared for the applicant’s court appearance in NSW so they can be given limited weight. The Tribunal acknowledges the psychological effect the separation is having on the applicant’s wife and the children asking in the video for their Father to be returned home to them.
The Tribunal acknowledges the health issue facing the spouse and children and that they would not receive the medical care they require if they were faced with accompanying the applicant to Lebanon in order to lodge an Offshore Partner visa however the Tribunal must assess the application against the criteria for the grant of the bridging visa.
The letter from [Mr C], the applicants’ brother states that he will support the applicant and his family until they are able to get on their own. The letter from [Mr A] states that he is willing and able to support the applicant financially and mentally while he is waiting for his High Court Case.
Barrister – “The Applicant’s Statement of Facts, Issues and Contentions.
The barrister’s submission of 2 August 2021 states that the applicant is detained unlawfully since the Minister is unable to remove the applicant from Australia to Lebanon and is unwilling to grant the applicant a visa to remain in Australia. He states that Lebanon has closed its borders and Australia has closed its borders unless an exemption applies, and these are the reasons the Minister cannot remove the applicant to Lebanon. This he contends is in “violation against arbitrary and indefinite detention and the prohibition against torture, cruel, inhuman and degrading treatment which are jus cogent principles under international customary law, from which there can be no derogation”. The barrister cites a number of cases and makes arguments regarding the impact of COVID-19 on travel arrangements into Lebanon.
The Tribunal notes however that advice on the Department of Foreign Affairs and Trade website regarding travel to countries in particular Lebanon does not indicate that Lebanon has closed its borders quite to the contrary as shown from the advice below. As such the Tribunal can give little weight to this argument that the Minister is unable to obtain an exemption for the applicant to leave Australia since this is in the Australian government’s hands and that the borders of Lebanon are closed.
Travel
- Beirut International Airport is operating at reduced capacity. You'll need to submit a negative COVID-19 (PCR) test result, with a scannable QR code, before boarding your flight to Lebanon. You'll also need to download the ‘Covidlebtrack’ mobile phone application. Passengers travelling from Brazil or India must stay for at least 14 days in a third country before being permitted to enter Lebanon.
- You'll be required to undergo a COVID-19 (PCR) test on arrival, and observe a period of self isolation. You may be required to quarantine in a government-designed hotel at your own expense. This will depend on where you're travelling from. Exemptions for pre-flight COVID-19 (PCR) testing and hotel quarantine may apply, including for vaccinated travellers. Follow the advice of local authorities. Contact your airline or the nearest embassy or consulate of Lebanon for further details.
The Tribunal finds that the question of whether the applicant’s detention is lawful or otherwise is a matter for a Court and does not go to whether the applicant satisfies cl 050.223 and cl 050.212(2).
For clarity, the barrister has quoted a number of cases including WKMZ at [153], AJL20 and AIKateb and maintains that “the Minister and/or the Commonwealth has failed to remove the applicant as soon as reasonably practicable, the detention is arbitrary and indefinite and the applicant should be granted a bridging via (sic) and released forthwith”.
The Tribunal has considered this argument and finds scant evidence that the Minister cannot remove the applicant to Lebanon and that the question as to whether the detention is arbitrary and indefinite is a matter for a Court to determine and as such can give these arguments little weight in assessing whether the applicant meets cl 050.212 (2) to (9) and cl 505.233.
The barrister states that the issue for the Tribunal is that the decision by the delegate to refuse the application was made contrary to law and that the finding that the applicant did not satisfy cl 050.223 was made in error. The delegate misapplied the relevant principles and did not give proper, genuine or realistic consideration to the claims and there was not a sufficient logical or evidentiary basis for the delegate to find the applicant will not abide by condition 8564 - must not engage in criminal conduct.

The barrister states that the finding by the delegate under the “departure grounds” cl 050.212(2) were made in error. None of these errors were explained in any detail in the submission or the hearing.
The Tribunal has considered this argument and finds it is making its decision ‘de novo” and is not bound by the claimed errors or otherwise in the delegates decision.
Judicial review.
The barrister submits that the review application before the Tribunal is an application for judicial review and therefore satisfies cl 050.212(3A) and cl 050.212(4). The Tribunal has considered this argument and notes that the Encyclopaedic Australian Legal Dictionary defines as follows.
judicial review
Administrative law
The determination by courts of the legality of exercises of power by administrative decision-makers. Judicial review is confined to a review of questions of legality and does not extend to review of the merits of administrative action. The High Court of Australia, the Federal Court of Australia, the Federal Magistrates Court and the superior courts of the States and Territories have authority in judicial review proceedings to determine the scope of administrative decision-makers’ powers.
The Legal Services Commission of South Australia (found at: Judicial Review (lawhandbook.sa.gov.au)) states that:
In theory, judicial review is different from any administrative appeal or a complaint to the Ombudsman. A person seeking to obtain judicial review of a decision or action will seek an order from a court that a decision be set aside, that a proceeding be restrained or that certain action be taken by a government or statutory agency. However, a court will not normally attempt to direct a government agency as to which course of action it should follow.
In deciding whether to grant judicial review, the court looks at the methods adopted by the government agency or department in coming to a decision and determines whether:
·     those methods were consistent with natural justice or procedural fairness
·     the factors taken into account by the decision maker were correct under the legislation
·     the decision maker acted within the powers given in the legislation.
The courts do not review the actual decision on its merits but decide whether it was properly made. It is possible that the same decision will be made by government the second time around, this time strictly following the instructions of the court about what is lawful.
The courts have seen their role as supervising the decision-making powers of the agency or department and ensuring that it stays within proper boundaries.
It is clear from the above definitions that “Judicial review” is an order sought from a Court and not the Tribunal and as such the barristers submission that the review application to the Tribunal satisfies the definition of “Judicial review” is given little weight.
Barristers - “Applicant’s Supplementary Submissions”.
The barristers second submission contends there are two legal consequences for the applicant if he is unsuccessful in this application; he will be returned to Lebanon in breach of Australia’s non-refoulement obligations or he will be indefinitely detained.
He states that the applicant cannot apply for another protection visa, a point which is not in contention, due to the combined effects of s197, s48A and s48B of the Act which are discussed in further detail later in this decision. The barrister asserts that the usual consequence of not granting the Bridging visa is that the applicant would be removed from Australia “as soon as practicable” pursuit to s198 of the Act however due to the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 which is to receive royal assent as the time of this submission, the amendments to s197C does not permit removal of an unlawful non-citizen UNC if a person has applied for a protection visa and a “protection finding” is made.
He then states “in other words, to the extent that non-refoulement obligations are found to be owed to the applicant in respect of Iraq (sic) (should the applicant apply for a protection visa), there is no legal requirement to return the applicant to Iraq (sic) even if he does not hold a valid visa.
He then states “Furthermore, in respect of the claim of ‘indefinite detention’, as stated by the Full Federal Court in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 (WKMZ) (at [136])”
As all the authorities have recognised, there are a number of executive options
available for genuine consideration after a person has exhausted her or his options to
challenge a visa refusal or cancellation, although there are some that could not
rationally be said to be likely to result in a favourable outcome, as Rares J pointed out 30 in FRH18. While those options are being genuinely, promptly and reasonably
considered and pursued, a person may nevertheless suffer continued loss of liberty
with no chronologically fixed endpoint, and no endpoint ascertainable by the
individual concerned, so that her or his detention is properly described as “indefinite”.
… Decision makers in the position of the Tribunal are not entitled to ignore the
continued deprivation of liberty of a person in the position of the appellant, while the
executive pursues its policies to avoid refoulement. Further (and separately), if these
matters are put to the decision maker as a representation, the decision maker is obliged to consider them because of the terms of s 501CA(3).
The reasoning in the barristers argument is that the applicant is unable to apply for a protection visa and there has been no assessment of the applicant for a protection visa as provided under s36 of the Act to determine whether Australia’s international non-refoulement obligations apply and therefore the Tribunal is required to make an assessment of the non-refoulement claims in the specific context of the discretion in section 501CA(4) of the Act.
The Tribunal has considered this argument and others made regarding the likelihood of an unsuccessful offshore Partner visa application due to likely failing the character test and the concerns the applicant has over his family being unsafe if accompanying him to Lebanon to lodge such a visa. The Tribunal notes the requirement for it not to ignore the continued deprivation of a liberty of someone whose detention is “indefinite” due to no chronologically fixed endpoint. However, that is not the case here because despite the barrister stating that the borders are closed in Australia and Lebanon there are exemptions for travel out of Australia and the government could make arrangements for such an exemption. Further the information on the DFAT website shows that borders to Lebanon are not closed and COVID -19 arrangements are in place to facilitate visitors to the country. The Tribunal can find scant evidence that there is “no fixed endpoint” but rather there are no unsurmountable impediments to the applicant returning to Lebanon.
The barrister mentions the harm that would occur to the applicant however in previous submissions the applicant has cited lack of petrol, pharmaceuticals and the general economic situation in Lebanon together with his concern that had he and his family been in Lebanon they would likely have been killed in the gas explosion in 2020 which the barrister states may be a “genuinely held belief”.
The Tribunal has weighed this concern over harm to the applicant against the fact that he has support in Lebanon with his mother and younger brother living there and that the general economic situation and shortages are factors faced by every resident in the country and finds that there is no harm specifically directed to the applicant were he to be returned to Lebanon.
Second hearing
[Mr C] was the first witness and stated that he was ready to open everything for for his brother such as a bond for a house although he later said the family already have a house. He will put money in his brothers account, so he does not have to work. The applicant’s wife is on Centrelink, but it is not enough. He advised that he is single and has the resources to assist financially. He will do anything he is asked to assist.
[Mr B] the second witness has a business and can assist with anything and can organise accommodation and support if his visa allows the applicant to work, he will offer him a job. He confirmed the applicant’s wife has her own house and he can assist with the rent and anything that is required.
[Mr A] said the applicant is a very decent man and the best friend he ever had. He owns his own company and can give the applicant a job, pay rent for him and offer any other assistance. When the Tribunal asked this witness if the applicant had ever requested financial assistance in the past, he advised that he had not. When asked if he had told the applicant that he would help him, [Mr A] he said, “he knows that I would assist him".
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant satisfies cl 050.212(2) and cl 050.223 which provide as follows.
050.212(2)
(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.
050.223
The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.
Immigration status of the applicant - cl 050.211
Clause 050.211 is met if, at the time of application:
(1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and
(2)the applicant was not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17).
The applicant is an un-lawful non-citizen.
The applicant must continue to satisfy this criterion at the time of decision: cl 050.221.
Accordingly, the applicant meets cl 050.211(1).
The applicant is not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). Accordingly, the applicant does not meet cl 050.211(2).
Therefore, the applicant meets cl 050.211.
The grounds for seeking the visa - cl 050.212
At the time of the visa application, the applicant must meet one of the alternatives set out in cl 050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl 050.221.
In this case, the applicant is apparently seeking to meet any or all of the criteria in cl 050.212. The Tribunal took the applicant through the criteria and examined his claims including those of the barrister. For the reasons below, the applicant does not meet cl 050.212.
Subclause 050.212(2) - Acceptable arrangements to depart Australia
This clause provides as follows.
(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.
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 Departmental guidelines (PAM3), whilst not binding on the Tribunal, nevertheless provide 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]).
The Tribunal asked the applicant if he had plans or was making arrangements to leave Australia. He replied that no, he had no arrangements to leave Australia because he was applying for a visa to stay in Australia. The Tribunal put to the applicant that he did not satisfy this clause because it seemed he had not made and was not the subject of acceptable arrangements to depart Australia and asked him to respond. He replied that the Tribunal had not asked him for anything, but he wants to go back to his family and not repeat the mistakes of his past.
The barrister asked to clarify the issue around departure. The barrister has apparently a current High Court application on behalf of the applicant and if the application fails then the applicant will make arrangements to leave Australia. The barrister claimed the Tribunal had not given the applicant a fair and just opportunity to explain his departure arrangements.
The Tribunal for the third time asked the applicant if he was making arrangements to leave Australia. He responded that he was waiting on the High Court decision and whether it is yes or no. If it is unsuccessful, he will make arrangements to depart Australia. If it is yes, he will renew his passport and honestly, he does not want to leave. The barrister advised that the case could take 6 to 12 months and maybe he will prevail with the case.
The Tribunal has given careful consideration to these arguments and also to the clear and unequivocal wording of the clause ‘IS MAKING, or is the subject of, acceptable arrangements”. Neither the barrister nor the applicant have provided evidence of the High Court case or whether the High Court will even hear the case. The barrister stated that the Tribunal should be aware of the High Court case or find it for itself however it is not for the Tribunal to make an applicant’s case for them and it is the responsibility of the representative to provide evidence. However, even if the claimed High Court case is heard and the applicant prevails in 6 to 12 months’ time it does not go to the fact that the applicant at this time is not making and is not the subject of any arrangements to leave Australia. As he said himself, he does not want to leave.
For these reasons, the Tribunal is not satisfied that at the time of application the applicant was not making nor was he the the subject of acceptable arrangements to depart Australia. Therefore, the applicant does not meet. cl 050.212(2).
Substantive visa application – cl. 050.212(3).
This clause provides as follows.
(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.
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.
‘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 an application being made: s 5(9) of the Act.
Section 195 of the Migration Act states that a person in detention has a maximum of seven working days in which to apply for a visa. Section 195(2) states that a detainee who does not apply for a visa within the time allowed may not apply for a visa, other than a bridging visa or a protection visa, after that time.
It is noted that the applicant had applied for a Protection visa which was refused, and that refusal affirmed by the Tribunal in 2015. As such, the applicant is affected by s48A and s48B of the Migration Act and cannot apply for another protection visa while he remains in the migration zone since his protection visa application was refused (even if not finally determined). He had previously made a s48B request which was unsuccessful.
The Tribunal put to the applicant that he is prevented from validly applying for a substantive visa and therefore it seemed he did not meet this clause. The applicant did not respond and the barrister made no arguments to support him meeting this clause.
Given that 050.212(3)(a) requires that an applicant “HAS made…. a valid application” the fact that such an application had not been made means the applicant cannot satisfy that clause. The Tribunal finds the applicant did not satisfy this clause at the time of application.
Accordingly, the applicant does not meet cl 050.212 (3).
Subclause 050.212(3A).
This clause provides as follows.
(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.
Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.
The Tribunal put to the applicant that he is prevented from making a substantive visa application in Australia and it seems the application does not satisfy this clause.
The barrister submitted that the substantive visa application is a writ of mandamus made in the High Court application. He states that since the Minister has denied the applicant a bridging visa and has continued to detain the applicant for the purpose of his removal from Australia to Lebanon it is in violation of the “prohibition against arbitrary and indefinite detention and the prohibition against torture, cruel, inhuman and degrading treatment, which are jus cogent principles under international customary law from which there can be no derogation.” He states that the decision to refuse to grant the applicant a visa and detain him when there is no reasonable prospects of removal is beyond the statutory and non-statutory powers of the Minister and the Commonwealth and was and remains unlawful. The barrister states that if the applicant’s detention is found to be unlawful, the Minister would have to grant a family visa or some other substantive visa.
The Tribunal has considered this argument and notes that there is a definition of “substantive visa” in the Migration Act as follows.
Substantive visa means a visa other than;
(a)   A bridging visa; or
(b)   A criminal justice visa; or
(c)   An enforcement visa.
The Tribunal finds that a writ of mandamus or an application to the High Court does not satisfy the definition of a substantive visa and as such the applicant has not made a valid application for a substantive visa of a kind that can be granted in Australia and as such does did not meet this clause at the time of application.
Accordingly, it finds that the application does not meet cl.050.212(3A).
Subclause 050.212(4)
Cl.050.212(4) provides as follows.
(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.

The Tribunal put to the applicant that he is prevented from making a substantive visa application in Australia. This is because of s195 and s48, s48A and s48B of the Migration Act and it seems the application does not satisfy this clause.
The application is in relation to the refusal to grant a bridging visa but not a substantive visa. The applicant has not had a decision to cancel a visa; nor to revoke the cancellation of a visa and is not making an application of this kind so the Tribunal finds that cl 050.212(b), (ba), (bb) and (c) are not met.
The Tribunal has considered whether the application meets (4)(a) and whether 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.
The barrister has argued that the claimed application to the High Court is “on point” to meet this clause and the applicant is subject to arbitrary and unlawful detention which has had a catastrophic effect on his family and he should be granted a bridging visa to re-unite with his family. The Tribunal has considered this but finds the question of detention is one for a Court to decide and while it is evident that the applicants children and wife miss him a good deal and they wish to reunite, the Tribunal must be satisfied that the legislative requirements are satisfied.
As far as the hearing evidence goes the claimed application to the High Court relates to alleged “unlawful detention” and only by inference to the Ministers refusal to grant a substantive visa. Even if the Tribunal accepts the claimed High Court application for which there is scant evidence and accepts the claim that the applicant is “unlawfully detained” which is a decision for the High Court should they choose to hear the case and then accepts the further extrapolation of the claim to being about a refusal of a “family visa “ or other substantive visa it is clear that it is not about “judicial review of a decision in relation to a substantive visa, other than a decision to refuse to grant a visa’, (emphasis added) since it is apparently about unlawful detention. Accordingly, the Tribunal finds that the application does not meet cl.050.212(4a) and since the Minister has not applied for judicial review it does not meet cl.050.212(4aa).
The Tribunal has considered whether the application meet s(4)(d) and whether the application is for “Judicial review of the validity of a law that affects: (i) the applicants eligibility to apply for a substantive visa or (ii) the applicants entitlement to be granted or to continue to hold a substantive visa”. As far as the scant evidence goes the claimed application to the High Court involves the question of unlawful detention rather than the law that prevents the applicant from applying for a substantive visa since there is scant evidence that the application is for judicial review of s195 or s48 or s48A or s48B of the Migration Act. As such the Tribunal finds that the applicant does not satisfy cl 050.212(4).
Subclause 050. 212(4AAA)
This clause provides as follows.
(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.
Subclause 050.212(4AAA) is met if the applicant has applied for a declaration from a Court that the Migration Act does not apply to the applicant, or has applied for judicial review or merits review of a decision made in relation to the applicant under the Australian Citizenship Act 2007 (Cth), and those proceedings have not been completed.
It was put to the applicant that he does not on the evidence satisfy this clause. He did not respond and he barrister does not claim that this section applies to the applicant and on the scant evidence of the claimed High Court application it is not clear what the application claims other than that the detention of the applicant is unlawful rather than the Act not applying to the applicant. There has been no decision under the Citizenship Act 2007.
The Tribunal finds that cl 050.212(4AAA) is not satisfied.
Subclause 050.212(4AA)
This clause provides as follows.
(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).
Subclause 050.212(4AA) is met if 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 cl 050.212(3A)(b) or (4)(a) or (4)(aa) or (4)(d), that other person is not a party to a representative proceeding, and the applicant made a combined substantive visa application with that other person’s application.
It was put to the applicant that he was not a member of the family unit of a person whose substantive visa is the subject of judicial review proceedings since he is the principal applicant. He did not respond and he barrister does not claim that this section applies to the applicant. The Tribunal finds that the application does not satisfy cl 050.212(4AA).
Subclause 050.212(4AB)
This clause provides as follows.
(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
Subclause 050.212(4AB) is met if the applicant is a member of the immediate family (as defined under reg 1.12AA) of a person who meets the requirements of cl 050.212(4AAA), or is a brother or sister (who has not turned 18) of a person who meets the requirements of cl 050.212(4AAA) and who has not turned 18.
It was put to the applicant that he was not a member of the family unit of a person whose substantive visa is the subject of judicial review proceedings since he is the principal applicant. He did not respond and he barrister does not claim that this section applies to the applicant. The Tribunal finds that the application does not satisfy cl 050.212(4AB).
Subclause 050.212(4A)
This clause provides as follows.
(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.

100. The Tribunal put to the applicant that he was not a group member of an action being a sole applicant and there is scant evidence that he is the beneficiary of a an action to sue under High Court Rules so it seemed that his application did not satisfy this clause. He did not respond and he barrister does not claim that this section applies to the applicant. The Tribunal finds that the application does not satisfy cl 050.212(4A).
Subclause 050.212(5) and (5A).
101. This clause provides as follows.
(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).

102. The Tribunal put to the applicant that he was not the subject of a visa cancellation because another person’s visa was cancelled so it seemed that his application did not satisfy this clause. He did not respond and the barrister does not claim that this section applies to the applicant. The Tribunal finds that the application does not satisfy cl 050.212(5) and (5A).
Subclause 050.212(5B) and (6).
103. This clause provides as follows.
(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.

Subclause 050.212(5B) is met if the applicant is a person to whom s 48A of the Act applies, and the applicant has made a request to the Minister to determine under s 48B that s 48A does not apply. There must not have previously been such a request under s 48B in relation to the applicant, or a request to the Minister for the exercise of the Minister’s power under ss 345, 351 or 417 of the Act.
Subclause 050.212(6) is met if the applicant is the subject of a decision that relates to a visa application made in Australia, or a visa cancellation and has made a request to the Minister to substitute a more favourable decision under ss 345, 351 or 417 of the Act. The decision in question must be a decision for which the Minister has the power to substitute a decision under ss 345, 351 or 417, and there must not have previously been such a request, or a request for a determination under s 48B of the Act. _

106. The Tribunal put to the applicant that he had previously sought or been the subject of a request for a determination under s48B of the Act which was unsuccessful in December 2018, so it seemed that his application did not satisfy these clauses. He did not respond, and the barrister made no arguments with regard to this clause. The Tribunal finds that the application does not satisfy cl 050.212(5B) and (6).
Subclause 050.212(6AA).
107. This clause provides as follows.
(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.

050.212(6AA) is met if the Minister has substituted a decision under ss 345, 351 or 417 of the Act, but the visa has not been granted because of a visa cap in operation under s 85 of the Act.

109. The Tribunal put to the applicant that he was not the subject of a decision by the Minister to substitute a more favourable decision, so it seemed that his application did not satisfy these clauses. He did not respond, and the barrister does not claim that this section applies to the applicant. The Tribunal finds that the application does not satisfy cl 050.212 (6AA).
Subclause 050.212(6A) and (6B).
110. These clauses provide as follows.
(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.

Subclause 050.212(6B) is met if the applicant has an outstanding request to the Minister under ss 345, 351 or 417 of the Act made before 1 July 2009, and holds, or has held, a Bridging E visa granted before 1 July 2009 on the basis of the applicant meeting cl 050.212(6A) or, for visa applications made on or after 14 September 2009, cl 050.212(6) or (6A).

112. The Tribunal put to the applicant that he does not hold a bridging visa and had not held a bridging visa granted before 1 July 2009 since he did not arrive to Australia until 14 July 2009 on a Sponsored Family visitor visa so it seemed that his application did not satisfy these clauses. The applicant did not respond, and barrister made no arguments with regard to this clause. The Tribunal finds that the application does not satisfy cl 050.212 (6A) and (6B).
Subclause 050.212(7).
113. The clause provides as follows.
(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.

Criminal detention is defined in reg 1.09 to include serving of imprisonment, including periodic detention. ‘Periodic detention’ is defined in reg 1.03 to mean a system of restriction of liberty by which periods at liberty alternate with periods in prison.

115. The Tribunal put to the applicant that he is not in criminal detention but rather immigration detention, so it seemed that his application did not satisfy these clauses. The applicant did not respond, and barrister made no arguments with regard to this clause. The Tribunal finds that the application does not satisfy cl 050.212 (7).
Subclause 050.212(8).
116. The clause provides as follows.
(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; an
(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.

117. The Tribunal put to the applicant that he does not hold a bridging visa E (Class WE) so it seemed that his application did not satisfy these clauses. The applicant did not respond, and barrister made no arguments with regard to this clause. The Tribunal finds that the application does not satisfy cl 050.212 (8).
Subclause 050.212(9).
118. This clause provides as follows.
(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.

119. Subclause 050.212(9) is met if a decision to refuse the applicant (or a member of the family unit who has made a combined application) a Class BC (Permanent Partner visa subclass 100 if previously granted a Subclass 309 visa or BI Business Innovation visa is the subject of valid judicial review proceedings that have not been completed, and the applicant (or member of the family unit) does not satisfy cl 010.211(6)(c) for the grant of a Bridging A (Class WA) visa.
120. The Tribunal put to the applicant that he has not made a valid application for Partner (Migrant) (Class BC ) visa and is not a member of a family unit whose substantive visa application is the subject of judicial review proceedings so it seemed that his application did not satisfy these clauses. The applicant did not respond, and barrister made no arguments with regard to this clause. The Tribunal finds that the application does not satisfy cl 050.212 (8).
121. Accordingly, the applicant does not meet cl 050.212.
Whether the applicant continues to satisfy the time of application criteria - cl 050.221
122. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl 050.211 and 050.212 at the time of decision. The applicant continues to be an unlawful non-citizen at the time of decision and is still not an eligible noncitizen the kind set out in sub regulation 2.20(7), (8), (9), (10), (11) or (17).
123. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl 050.211 and does not satisfy cl 050.212 and therefore does not meet cl 050.221.
Whether the applicant will abide by conditions - cl 050.223
124. Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on it. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject.

125. When considering cl 050.223, the Tribunal must consider which conditions, if any, should be imposed and whether it is satisfied that the applicant would abide by those conditions. In deciding the question of whether the applicant would abide by conditions imposed, the Tribunal is to consider the likely conduct of the applicant. In that context, relevant considerations may include the applicant’s past immigration history, in particular any previous breaches of immigration laws, the significance of the migration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach and whether the applicant had shown any contrition for their unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].

If the Tribunal is satisfied that the applicant will abide by the conditions if security of a particular amount is required, the applicant meets cl 050.223. However, if not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl 050.223 is not met.

127. In this case, cl 050.223 applies because the Minister must be satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following condition(s) should be imposed in the circumstances of this case:
8101 – No work
8207 – No Study
8401 – Report as directed.
8506 – Notify Change of Address
8564 – Must Not Engage in Criminal Conduct

8101 – No work
128. When asked if he would abide by this visa condition, the applicant responded that he has three witnesses including his brother who will support him and the family if they require support. It is noted that of the witnesses stated that Centrelink was sufficient for the applicant’s wife and children, but he could not live on the Centrelink payment. The three witnesses assured the Tribunal that the applicant could rely on them for financial support. The Tribunal accepts that the applicant will abide by condition 8101 – must not work.
8207 - No study
129. The Tribunal does not consider the applicant will study and finds that the applicant will abide by this condition 8207 – no study.
8401 – Report as directed.
130. The applicant advised that he would report as directed and was prepared to do so on an almost daily basis. The Tribunal finds that the applicant will abide by this condition 8401 – report as directed.
8506 – Notify change of address.
131. The applicant advised that he would advise of change of address, would not do anything wrong and end up “here again”. The Tribunal finds that the applicant will abide by condition 8506 – notify change of address.
8564 – must not engage in criminal conduct.
132. In the first hearing, the Tribunal put to the applicant that he had a drink driving conviction, driving disqualification, speeding while driving a motor vehicle when disqualified, dealing with stolen property and recklessly dealing with the proceeds of crime and imprisonment for more than 18 months suspended on bond. Further he had been involved in a police pursuit and was sentenced to eight (8) months imprisonment as a result. The Tribunal said it was concerned about this criminal record and wanted the applicant to explain the circumstances.
133. The applicant said he had been through a reckless time and had lost his younger brother. He has been detained here for three (3) years and had time to reflect. He promised to meet the requirements and he would go daily to the police station to do a breath test.
134. The applicant said he wanted to say something in English. He wants one little chance to fix up with his family, to see his children grow up and he will never make this mistake again. He wants to fix himself up and his son is walking, and he will not see him grow up. He promises not to do anything wrong; he wants one little chance; he is not doing anything wrong again and he promises to God. His children and his daughter need him.
135. In the second hearing, the Tribunal put to the applicant, after hearing how his witnesses had promised to assist him any way including financially and he had known about this assistance being available, why he did not ask them for help rather than dealing in stolen property.
136. The applicant said he was stupid, dumb and did not know it would end up here. He was grateful to be learning from his mistakes. He would never buy anything from someone when not sure of the source of it. He was drunk and did not make decent choices and now he has been here for three years and he has learnt to make better choices.
137. The Tribunal put to him again that his criminal conduct had occurred even when he had offers of financial assistance from his friends and he nonetheless went ahead and dealt in stolen property. The applicant said no one would want to be back here and no one would make the same choices. He said he wants to see his kids; his son cries and he wants to see him talk and grow up. He wants one little chance. He lost everything and he will never do anything wrong again.
138. The Tribunal notes the barristers first submission states that the applicant is at low risk of re-offending given his remorse and contrition and his rehabilitation and the support he has from his wife, family, friends and community. He further states it is in the best interests of the children so he can remain with his family in Australia. The applicant has strong ties to Australia and would face impediments if returned to Lebanon and the fact that he cannot be returned to Lebanon is a strong factor in favour of granting him a bridging visa before his High Court case is finalised. He states again that the applicant is the subject of unlawful, arbitrary and indefinite detention.
139. The Tribunal acknowledges the applicants ties to Australia and the fact that his children and wife wish him to return to them and gives weight to this but gives limited weight to impediments he would face if returned to Lebanon since he has a mother and younger brother there and the economic challenges are the same faced by other Lebanese citizens. The Tribunal has been given scant evidence of the High Court case or even if the Court will hear the case so can give it limited weight. The question of whether the applicant is the subject of unlawful detention is a matter for the Courts and not the Tribunal.
140. The Tribunal has considered the evidence carefully places considerable weight on the fact that the applicant has a criminal history which occurred while he had the support of his wife, family, friends and community and more importantly while he knew that the same witnesses who pledged in the hearing to support him financially would also have assisted him at the time of the offences. While it is acknowledged that the applicant is distressed over being separated from his family, he appears to have little insight into the victims of his offending and is not remorseful for the effects or potential effects on his victims and again the Tribunal places considerable weight on this. Stolen property belonged to someone who worked hard to it and they would have suffered when this property was stolen. Likewise driving while drunk, speeding, driving while disqualified and speed racing the police are significant dangers to other residents who could be severely injured in the course of these events.
141. Taking all matters into account the Tribunal finds the weight given to the fact that offences occurred while the applicant knew he had the financial support of friends and the support of his wife, family, friends and the community plus the weight given to the lack of insight into the victims or potential victims of his offending outweigh the applicants ties to Australia; the fact he and his family want him to return home; any impediments to returning to Lebanon and the scant lack of information on the High Court case and the question of whether the applicant is the subject of indefinite detention which needs to be resolved by the High Court if they agree to hear the case.
142. Accordingly, the Tribunal is not satisfied that the applicant will abide by visa condition 8564 – must not engage in criminal conduct.
Offer of Security
143. While an offer of specific security has not been offered the Tribunal will accept the three witnesses offers of financial assistance as an offer of security. However, it does not consider that this would deter the applicant from reoffending as he had the financial support of these friends at the time he offended and it did not deter him at that time.
Whether a security has been lodged - cl 050.224
144. Clause 050.224 requires that if an authorised officer has requested a security for compliance with the conditions he or she has indicated will be imposed on the visa, the security has been lodged. There has been an offer of a security bond however none has been lodged because the Tribunal considers it would not secure the applicants compliance with the visa conditions.
145. Accordingly, the applicant does not meet cl 050.224.
146. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
147. The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant 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.
DECISION
148. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
De-Anne Kelly
Member

[2021] AATA 3422

12 August 2021

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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