2300444 (Migration)

[2023] AATA 295

2300444 (Migration) [2023] AATA 295 (24 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2300444

MEMBER:Katie Malyon

DATE:24 January 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 24 January 2023 at 12:52 pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicant convicted of several offences and imprisoned – acceptable arrangements to depart Australia – plans to apply for a Partner visa – expired Lebanese passport – valid application for a substantive visa – strong compassionate circumstances – relationship with an Australian resident and family – assistance to Australian children – imminent marriage – request for Ministerial Intervention – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007
Migration Act 1958, ss 5, 48, 73, 85, 116, 137, 140, 189, 194, 195, 345, 351
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 051.211; rr 1.12, 2.20

CASES

Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283

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

1. 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).

2. The applicant, Lebanese national [named], applied for the visa on 10 January 2023.  At that time Class WE contained 2 subclasses: Subclass 050 (General); and, Subclass 051 (Protection Visa Applicant).  In the present case, [the applicant] is seeking to satisfy the criteria for grant of a Subclass 050 (General) visa (BVE). The criteria for a BVE are set out in Part 050 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevant to this matter, the primary criteria include cl 050.212 of Schedule 2 to the Regulations.

   Background

3. For context, the Tribunal has set out below a brief summary of [the applicant’s] immigration and criminal history in Australia following cancellation of his Student visa. 

4. [The applicant] was born in Lebanon on in [specified year].  He arrived in Australia [in] June 2013 as the holder of a Subclass 573 Student visa to undertake study at [a named university]. 

5. Just over 7 months later, [in] February 2014, [the applicant] was remanded into criminal custody and charged with [number] counts of having sexual intercourse with a person between the ages [specified] after he married [an underage] girl in an Islamic ceremony at her father’s home. [In] March 2014, [the applicant’s] Student visa was cancelled under s 116(1)(e) of the Act as a consequence of his multiple criminal charges. He was detained as an unlawful non-citizen (UNC) pursuant to s 189 of the Act and transported to the [named detention centre].

6. On 28 April 2014, [the applicant’s] application for a BVE visa was refused by a delegate and, on review to the former Migration Review Tribunal (MRT), it was found on 15 May 2014 that the MRT had no jurisdiction to review the delegate’s decision as the review application had been lodged out of time.  

7. [The applicant] lodged an application for a Subclass 866 Protection visa and another BVE application on 18 July 2014.  The delegate’s decision to refuse his second BVE application was affirmed by the MRT on 5 August 2014 on the basis the Tribunal was not satisfied that [the applicant] would abide by conditions imposed on the BVE if it was granted to him.  The former Refugee Review Tribunal (RRT) affirmed the delegate’s decision to refuse [the applicant’s] Protection visa application on 7 November 2014 and a subsequent application for judicial review of the RRT’s decision to the Federal Circuit Court of Australia (FCCA) found in favour of the Minister [in] April 2015.

8. [In] March 2015, [the applicant] was convicted of ‘persistent sexual abuse of a child’ and given a sentence of [period] imprisonment.  The Tribunal understands [the applicant] continues to be a Registerable Person under the Child Protection (Offenders) Act 2000 due to his criminal history. Following his conviction, [the applicant] was detained by NSW Police at [a named] Correctional Centre. Subsequently, over the next 7½ years he was transferred to multiple different NSW Correctional Centres. [In] August 2021, [the applicant] was released from the minimum-security [named] Correctional Centre and transferred to [the named detention centre] pursuant to s 189 of the Act. He has remained at [the detention centre] as a UNC following his release by the NSW Police.

9. Since the time of his conviction, [the applicant] has lodged further applications for BVEs.  An application made on 9 May 2022 was refused on 13 May 2022.  No review of that refusal was sought.  On 15 September 2022, [the applicant] lodged another BVE application.  This application was refused on 22 September 2022 and the delegate’s decision was affirmed by the Tribunal on 3 October 2022.[1]  

   [1] [Source deleted.]

10. On 10 January 2023, [the applicant] made a further application for a BVE which was refused the same day on the basis that [the applicant] did not meet any of the time of application requirements in cl 050.212(2) - cl 050.212(9) of Schedule 2 of the Regulations (emphasis added). This is the decision which is the subject of this review. A copy of the delegate’s refusal decision was provided to the Tribunal.

11. As noted in the delegate’s refusal decision, [the applicant] lodged an application for Ministerial Intervention pursuant to s 195A of the Act [in] January 2023. Section 195A of the Act allows the Minister to grant a detainee a visa if the Minister thinks it is in the public interest to do so: s 195A(2) of the Act. In his application for Ministerial Intervention, [the applicant] states that he wants to be released into the community and remain in Australia as he fears for his safety if he was to return to Lebanon. The delegate’s decision dated 10 January 2023 also confirms that [the applicant’s] s 195A Ministerial Intervention application is currently under consideration by the Minister.

    Hearing – 19 January 2023

12. [The applicant] appeared before the Tribunal on Thursday, 19 January 2023 to give evidence and present arguments.  The Tribunal also received oral evidence from his fiancée, [Ms A].  [Ms A] was accompanied by her [age]-year-old daughter and her [age]-year-old son who will remain unnamed in this decision record.  The Tribunal found [the applicant] and [Ms A] to be credible witnesses. 

13. Prior to the hearing, [the applicant] provided the Tribunal with a number of documents including:

    1)a signed letter dated [in] January 2023 from [Leader A] (Authorised Marriage Celebrant [Number]) confirming that he received a completed Notice of Intended Marriage form [in] June 2022 signed by both [the applicant] and [Ms A] and that he will solemnise the couple’s marriage on [a day in] January 2023 at [time] at the [named detention centre];

    2)2 unsigned statements from [the applicant] addressing the delegate’s reasons for refusal of his BVE, multiple photographs of [the applicant] together with his fiancée [Ms A] and her children at [the detention centre], evidence of a refund from the Trust Account of the lawyer who advised him in August 2021 about potentially seeking judicial review of the FCCA’s decision of [April] 2015 regarding the RRT’s decision to affirm refusal of [the applicant’s] Protection visa application which was lodged on 18 July 2014;

    3)evidence of completion of the following 3 courses at the [named detention centre] offered by [Agency 1]:

    a)  [Names of vocational and parenting courses and dates].

    The Tribunal understands that [Agency 1] is an international provider of online courses[2] approved by [named detention centre] to deliver courses to its detainees;    

    4)an unsigned, undated statement from [Ms A] regarding her work as a [Position 1] at [her employer], the couple’s relationship following the death of her husband (the father of her 2 children) [in] 2018, and [the applicant’s] role now as her children’s father-figure.  [Ms A] also provided her [Bank] Statement dated 5 January 2012 confirming funds available to support [the applicant] should he be released from the [detention centre] with condition 8101 (No work) attached to his visa ;

    5)multiple unsigned, undated letters of support from family in Sydney ([the applicant’s] brother, his aunt and cousin) as well as friends in Sydney’s Lebanese community; and,

    6)Legalised Attestation (in Arabic together with a certified copy English translation thereof) made by [Official A], [from the applicant’s] village in Lebanon dated 21 September 2021 confirming that news of [the applicant’s] ‘atrocious acts’ have been ‘transmitted by local and international news agencies’ in Lebanon showing that he has been convicted of raping a [age]-year-old girl and that this is ‘deemed an atrocious crime’ in Lebanon’s ‘conservative society’ which would have lead to his ‘killing at once’ if it had occurred in Lebanon.  [Official A] opines it would be better for [the applicant] to remain in Australia for his safety, especially in light of the security chaos striking Lebanon since 2019.

    [2] [Source deleted.]

14. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.  The Tribunal has also briefly commented on the appropriateness of referral of this decision to the Minister. 

    CONSIDERATION OF Claims and evidence

15. The issue in this case is whether, at the time of application on 10 January 2023, [the applicant] meets one of the multiple alternative grounds for seeking a BVE set out in cl 050.212(2) - cl 050.212(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.

16. The Tribunal has considered each of the requirements in cl 050.212 below and, where relevant, has referred to evidence provided at the hearing as well as documentation provided prior to the hearing.

    Acceptable arrangements to depart Australia – cl 050.212(2)

17. Subclause 050.212(2) is met if the Minister (that is, the Department or the Tribunal on review) is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. The term ‘acceptable arrangements’ is not defined in the Regulations. The Department’s policy 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 are genuine (Lin at [30]).

18. In his pre-hearing submissions [the applicant] addresses cl 050.212(2) of Schedule 2 of the Regulations. He refers to comments made in the delegate’s decision that he was unable to apply for travel documents due to the requirement of the Lebanese Government that he provide his criminal record. [The applicant] submits that there is a potential risk of harm to himself and his family if he was to share his criminal record with the Lebanese Government as the charge ‘persistent sexual abuse of a child’ would be taken seriously without considering the consequences.  He also refers to the current humanitarian crisis and corruption in Lebanon which would further exacerbate the risks to himself and his family.  Furthermore, [the applicant] confirms it is his intention not to depart Australia with his family once he obtains a travel document but, rather, he will apply for a Partner visa once released from detention.  He adds he would only consider returning to Lebanon as a last resort as doing so would put himself and his 2 step-children ([Ms A’s] children) at risk.   

19. At the hearing on 19 January 2023, the Tribunal asked [the applicant] whether he had made arrangements to depart Australia. He confirmed that his Lebanese passport has expired and that he has not yet applied for a new one because, in doing so, he would need to give his address and, as a consequence, the Lebanese Government would become aware of that he is currently detained at the [named detention centre]. [The applicant] said that, if he is released from detention, he will apply for a new Lebanese passport giving his address as that of [Ms A] and then would be able to apply for a ticket to leave Australia. He also told the Tribunal that, if his BVE is refused, he is aware he will need to consider leaving Australia unless the Minister grants him the opportunity to lodge a Partner visa application onshore. [The applicant] confirmed he is not currently making any arrangements to depart Australia pending the outcome of his s 195A application to the Minister.

20. Based on evidence provided, the Tribunal is not satisfied, either at the time of lodgement of his BVE application or at the time of this decision, that [the applicant] is making acceptable arrangements to depart Australia. The Tribunal is also not satisfied that [the applicant] is the subject of acceptable arrangements to depart Australia. Therefore, he does not meet cl 050.212(2) of Schedule 2 to the Regulations.

    Substantive visa application - cl 050.212(3)

21. 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. 

22. The term ‘substantive visa’ in this context means a visa other than a Bridging visa, a 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.

23. In his online application for a BVE lodged on 10 January 2023 and in response to the question ‘Reason for applying’, [the applicant] selected ‘Application for a Ministerial Intervention’ as the reason for his BVE application.  The delegate was not satisfied that, at the time of lodgement of his BVE application, [the applicant] had made a valid application for a substantive visa of a kind that can be granted if he is in Australia and nor was the delegate satisfied that [the applicant] will lodge an application for a substantive visa as no supporting evidence had been provided other than a personal statement that he will reside with his family once released into the community.  

24. As noted above at para [13(1)], [the applicant] has provided the Tribunal with a signed letter dated [in] January 2023 from [Leader A], Authorised Marriage Celebrant [Number], that [the applicant] will be married to his fiancée [Ms A] at [the named detention centre] on [a day in] January 2023 at [time].

25. During the hearing, [the applicant] confirmed that he had not made a valid application for a Partner visa.  He told the Tribunal that, when he was taken back into detention at [the named detention centre] from the [named] Correctional Centre [in] August 2021, his brother referred him to a lawyer working with [Firm 1].  The lawyer told [the applicant] that he would be able to appeal refusal of his earlier Protection visa and that the lawyer would assist him with such an application.  [The applicant] added that everyone knows detainees are only able to apply for a substantive visa, such as a Partner visa, within 2 days.  He asserts that he is 100% sure no one actually told him about the 2 day limit for applying for a substantive visa when he was taken into detention [in] August 2021 but, in any event, his lawyer had told him that they would appeal refusal of his Protection visa.  The lawyer said he would seek an extension to obtain new evidence in connection with this Protection visa or lodge a new Protection visa.  However, no appeal was lodged and nor was a new Protection visa application lodged: so the lawyer refunded his $2,500 to him on 25 January 2022.  The Tribunal notes a refund from [Firm 1] to [the applicant] is confirmed by the Trust Account statement provided by [the applicant] to the Tribunal.  [The applicant] said he is of the view that the lawyer lied to him as no new Protection visa application was lodged and nor was an appeal lodged in relation to his earlier Protection visa application (referred to above at para [7]): hence, the refund. 

26. The Tribunal observed that the delegate’s decision confirms he was interviewed by a Departmental officer [in] August 2021 who asked him about his intentions and, during that interview, he told the Departmental Officer that he intended to lodge a judicial review of his earlier Protection visa refusal.  The Tribunal noted that an appeal to the Federal Court of Australia from the decision of the FCCA made [in] June 2015 was well out of time and would not succeed.  [The applicant] acknowledged the Tribunal’s comments in this regard and said that’s why the lawyer was considering lodging a new Protection visa application updating the Department on the situation in Lebanon but the lawyer failed to do and so he refunded [the applicant’s] money to him.  [The applicant] confirmed that no new Protection visa application has been lodged with the Department. 

27. In addition, [the applicant] confirmed no Partner visa application had been lodged within 2 days of been taken into detention [in] August 2021 and nor was an extension to do so sought because, although he and [Ms A] have now known each other for more than 9 years as members of the Sydney Lebanese community, their relationship did not progress until many months after her husband’s death in 2018.  He said [Ms A] has been visiting him at the [named detention centre] almost every day since visits have been permitted again following lifting of COVID restrictions.  It was in June 2022 that they decided to marry and provided the marriage celebrant [Leader A] with their Notice of Intention to Marry.  [The applicant] acknowledged that he was now well out of time to lodge a Partner visa application but earnestly and sincerely hopes that the Minister will allow him to do so.  As noted above, [the applicant] has provided evidence that he has arranged marriage celebrant [Leader A] to perform a wedding ceremony on [a day in] January 2023 at the [named detention centre].  [Ms A] echoed [the applicant’s] evidence in this regard in relation to the couple’s relationship and the inappropriateness of [the applicant] considering lodging a Partner application within 2 days of being taken into detention [in] August 2021 because their relationship had not progressed to that point at that time.

28. The Tribunal noted the requirement in cl 050.212(3) of Schedule 2 to the Regulations that it must be satisfied a substantive visa application has been lodged at the time of lodgement of the BVE and, if not, that [the applicant] will lodge such an application within the period specified. It reiterated that the period specified in s 195 of the Act is that a detainee may apply for a visa within 2 days after the date on which, having been detained, they have been told of the consequences of detention as required by s 194 of the Act or, within 5 working days after those 2 working days, if they inform a detention officer in writing of their intention to apply for a visa: s 195 of the Act. [The applicant] confirmed no applications at all had been made within the timeframe permitted or extended by s 195 of the Act. He added this is why he applied [in] January 2023 under s 195A of the Act for the Minister to grant him, as a detainee, the opportunity to allow him to apply for a Partner visa or request the Minister to just grant him the visa. He also confirmed that he had no update for the Tribunal in relation to his s 195A application currently before the Minister.

1. Based on available evidence, the Tribunal accepts that [the applicant] had lodged an application for Ministerial Intervention [in] January 2023 pursuant to s 195A of the Act which will enable him to lodge an application for a substantive visa (such as a Partner visa) outside the prescribed time period in s 195 of the Act or, if the Minister thinks it is in the public interest to do so, to grant him a visa. However, the Tribunal finds that there is no evidence, as at the time of application for his BVE visa on 10 January 2023 and as at the date of this decision, that [the applicant] lodged an application for a substantive visa or evidence that one will be lodged within the period specified since this period has now lapsed. Comments in relation to the appropriateness or otherwise of the Tribunal referring this matter to the Minister are set out below at paras [59] – [65].

2. Accordingly, [the applicant] does not meet cl 050.212(3) of Schedule 2 to the Regulations.

   Judicial review not completed - onshore substantive visa refusal: cl 050.212(3A)

3. 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.

4. During the hearing, [the applicant] confirmed that he has not sought judicial review of a substantive visa refusal decision, including refusal of his earlier Protection visa application.  There is no evidence before the Tribunal that [the applicant], or the Minister, has applied for judicial review of a decision to refuse to grant him a substantive visa.

5. For this reason, the Tribunal is not satisfied that this subclause applies to [the applicant’s] circumstances. Therefore, the Tribunal finds that [the applicant] does not meet cl 050.212(4) of Schedule to the Regulations.

   Judicial review - substantive visa decision other than refusal, visa cancellation /
   s 137K revocation and judicial review – cl 050.212(4)

6. Subclause 050.212(4) is met if:

   (a)the applicant has applied for judicial review of a decision in relation to a substantive visa (other than a decision to refuse the 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 refuse the visa); or

   (b)the applicant has applied for merits review of a decision to cancel a visa; or

   (ba)the applicant has applied under s 137K for revocation of the cancellation of a visa; or

   (bb)the applicant has applied for merits review of a decision under s 137L not to revoke the cancellation of a visa; or

   (c)the Minister (or Tribunal) is satisfied that the applicant will make an application of a kind referred to in cl 050.212(4)(b), (ba) or (bb); or

   (d)the applicant has applied for judicial review of the validity of a law that affects their eligibility to apply for a substantive visa or their entitlement to be granted or continue to hold a substantive visa.

7. During the hearing, [the applicant] confirmed that he was not making any claims under cl 050.212(4) of Schedule 2 to the Regulations and he was not seeking the BVE the subject of this review for any of these purposes. There is no evidence before the Tribunal that he satisfies any of the alternatives in the above subclauses.

8. For these reasons, the Tribunal is not satisfied that any of the alternatives in cl 050.212(4) apply to [the applicant’s] circumstances. Therefore, the Tribunal finds that [the applicant] does not meet cl 050.212(4) of Schedule 2 to the Regulations.

   Court declaration / judicial or review of citizenship decision – cl 050.212(4AAA)

9. Subclause 050.212(4AAA) is met if the applicant has applied for a declaration from a Court that the 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.

10. During the hearing, [the applicant] confirmed that this clause does not apply in his case. There is currently no evidence before the Tribunal that [the applicant] satisfies this subclass. Accordingly, the Tribunal is not satisfied that [the applicant] has made an application for a declaration from a Court that the Act does not apply to him, and nor has he applied for judicial review or merits review of a decision in relation to him under the Australian Citizenship Act 2007 (Cth). In these circumstances, the Tribunal finds that cl 050.212(4AAA) of Schedule 2 to the Regulations is not met.

    Judicial review – member of the family unit - cl 050.212(4AA)

11. 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), (4)(a), (4)(aa) or (4)(d) of Schedule 2 to the Regulations, 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.

12. [The applicant] confirmed during the hearing he has not make any claims under cl 50.212(4AA) of Schedule 2 to the Regulations. There is no evidence before the Tribunal that he satisfies any of these requirements. As such, the Tribunal finds that cl 050.212(4AA) of Schedule 2 to the Regulations is not met.

    Member of the immediate family or minor sibling of person who meets
    cl 050.212(4AAA) – cl 050.212(AB)

13. Subclause 050.212(4AB) is met if the applicant is a member of the immediate family (as defined under reg 1.12AA of the Regulations) 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.

14. For the reasons outlined above, the Tribunal has found that [the applicant] does not meet cl 050.212(4AAA). He confirmed during the hearing that he is not making any claims that he is a family member of a person who meets cl 050.212(4AAA). Accordingly, the Tribunal finds that cl 050.212(4AB) of Schedule 2 to the Regulations is not met.

    Consequential cancellation (review/revocation of primary cancellation) – cl 050.212(5) and cl 050.212(5A)

15. Subclause 050.212(5) is met if the applicant held a visa that was cancelled under s 140(1) or (3) of the Act because another person’s visa was cancelled, and that other person has applied for review of their visa cancellation decision or, alternatively, the Tribunal must be satisfied that the other person will make such an application.

16. Subclause 050.212(5A) is met if the applicant held a visa that was cancelled under s 140(1), (2) or (3) of the Act because another person’s visa was cancelled under s 137J of the Act, and that other person has applied for revocation of their visa cancellation under s 137K of the Act or has applied for merits review of a non-revocation decision made under s 137L of the Act or, alternatively, the Tribunal is satisfied the other person will make such an application.

17. During the hearing, [the applicant] confirmed that he is making no claims under cl 050.212(5) or cl 050.212(5A) of Schedule 2 to the Regulations. As noted above at para [5], [the applicant’s] former Subclass 573 Student visa was cancelled under s 116(1)(e) of the Act. There is no evidence before the Tribunal that [the applicant] meets the requirements in either cl 050.212(5) or cl 050.212(5A). Accordingly, the Tribunal finds that [the applicant] does not meet cl 050.212(5) or cl 050.212(5A) of Schedule 2 to the Regulations

    First Ministerial intervention request for Protection visa – cl 050.212(5B)

18. 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 of the Act that s 48A of the Act does not apply. There must not have previously been such a request under s 48B of the Act in relation to the applicant, nor a request to the Minister for the exercise of the Minister’s power under s 345, 351 or 417 of the Act.

19. Subject to s 48B of the Act, s 48A precludes a further application for a Protection visa after refusal or cancellation of such a visa. [The applicant] confirmed at the hearing that he has not made a request to the Minister under s 48B of the Act to enable lodgement of a new application for a Protection visa. There is no evidence before the Tribunal that [the applicant] has made such a request to the Minister under s 48B of the Act: rather, he has applied under s 195A of the Act to be granted a visa. Accordingly, the Tribunal finds that [the applicant] does not meet cl 050.212(5B) of Schedule 2 to the Regulations

    First Ministerial intervention request under s 345, 351 or 417 for visa – cl 050.212(6)

20. 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 s 345, 351 or 417 of the Act and there must not have previously been such a request, or a request for a determination under s 48B of the Act.

21. During the hearing, [the applicant] confirmed that he is making no claims under cl 050.212(6) of Schedule 2 to the Regulations. The Tribunal has found that [the applicant] is not the subject of a decision concerning an application for a visa or a decision to cancel a visa for which he has made a request to the Minister under s 345, 351 or 417 of the Act to substitute a more favourable decision. [The applicant] has made a request to the Minister to substitute a more favourable decision under s 195A of the Act which is not applicable to cl 050.212(6). Therefore, [the applicant] does not meet cl 050.212(6) of Schedule 2 to the Regulations.

    Impact of visa caps – cl 050.212(6AA)

22. Subclause 050.212(6AA) is met if the Minister, personally, has decided to substitute a more favourable decision for a review authority under s 345, 351 or 417 of the Act but the substantive visa cannot be granted because of a visa cap in operation under s 85 of the Act.

23. During the hearing, [the applicant] confirmed that he is making no claims under cl 050.212(6AA) of Schedule 2 to the Regulations. There is no evidence before the Tribunal that the Minister has substituted a more favourable decision of a review authority. Accordingly, cl 050.212(6AA) is not applicable in the circumstances of this case.

    BVE holder meets cl 050.212(6AA) and has compelling need to work - cl 050.212(6A)

24. Subclause 050.212(6A) is met if the applicant holds a BVE granted on the basis they meet requirements in cl 050.212(6AA) of Schedule 2 to the Regulations and has a compelling need to work.

25. During the hearing, [the applicant] confirmed that he is making no claims under cl 050.212(6A) of Schedule 2 to the Regulations. Given the Tribunal’s findings above at para [51], there is no evidence [the applicant] holds a holds a BVE granted on the basis that he met requirements in cl 050.212(6AA) and, as such, cl 050.212(6A) is not applicable to the circumstances of his case.

    Consideration of alternative criteria in cl 050.212(6B), (7), (8) and (9)

26. By way of summary of these remaining 4 criteria: cl 050.212(6B) is met if the applicant has an outstanding request to the Minister under s 345, 351 or 417 of the Act made before 1 July 2009; cl 050.212(7) applies to persons who are in criminal detention; cl 050.212(8) applies to a holder of BVE visa who has condition 8101 (No work) attached to their visa and who the Minister is satisfied has a compelling need to work; and, cl 050.212(9) is met if a decision to refuse the applicant a Spouse or Partner (Migrant) Class BC visa or an Interdependency (Migrant) Class BI visa is the subject of judicial review and the judicial review proceedings have not been completed.

27. During the hearing, [the applicant] confirmed that he is making no claims under cl 050.212(6B), (7), (8) or (9) of Schedule 2 to the Regulations. Based on available evidence, none of these causes apply to [the applicant]. Accordingly, the Tribunal is satisfied that [the applicant] does not meet cl 050.212(6B), (7), (8) or (9) of Schedule 2 to the Regulations.

    Conclusion  

28. For the cumulative reasons set out above, the Tribunal is not satisfied that [the applicant] meets any of the time of application alternative criteria in cl 050.212(2) – (9) of Schedule 2 to the Regulations. Accordingly, he does not satisfy criteria for the grant of a Subclass 050 Bridging (General) visa.

29. [The applicant’s] application for a Bridging E (Class WE) visa under s 73 of the Act is also an application for a Subclass 051 Bridging (Protection Visa Applicant) visa. However, for reasons discussed at the hearing, the Tribunal finds that [the applicant] is not an ‘eligible non-citizen’ referred to in reg 2.20(7) - reg 2.20(11) of the Regulations as set out in cl 051.211 of Schedule 2 to the Regulations. By way of summary, these provisions refer to persons who have been refused immigration clearance or who have bypassed immigration clearance having arrived by sea. As confirmed by [the applicant] at the hearing, he does not meet these requirements for the grant of a Subclass 051 Bridging (Protection Visa Applicant) visa.

    Is this an appropriate case to refer to the Minister?

30. Having found that the delegate’s decision must be affirmed because [the applicant] cannot meet cl 050.212 of Schedule 2 to the Regulations, the next issue for the Tribunal to consider is whether this is an appropriate case to refer to the Minister. As noted above, the delegate’s decision confirms that [the applicant] currently has pending an application to the Minister pursuant to s 195A of the Act.

31. The Minister has issued guidelines explaining the circumstances in which s/he may wish to consider exercising the public interest powers under the s 351, s 417 and s 501J of the Act (the Guidelines)[3] . The Guidelines state that the Minister will give possible consideration to exercising the public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances.  The Minister has also indicated cases which are inappropriate for consideration. No guidelines have been issued by the Minister in relation the exercise of the powers under s 195A of the Act.

    [3] >

    Relevant to the circumstances of this case, the Tribunal notes that the Guidelines confirm it is inappropriate to bring a matter to the Minister’s attention in circumstances where the person has an ongoing Ministerial intervention request under any of the powers covered by the Guidelines. Although the Guidelines do not refer to the Minister’s powers to grant a detainee a visa under s 195A of the Act, the Tribunal nonetheless has considered circumstances outlined in the Guidelines for possible referral to the Minister.

32. Consistent with the Guidelines, the circumstances which may be unique or exceptional in this case are:

    ·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 permanent resident. 

33. It is evident to the Tribunal that [the applicant] has a genuine support for his s 195A application to the Minister not only from [Ms A], her [age]-year-old daughter and [age]-year-old son but also [the applicant’s] extended family and friends in Sydney.

34. During the course of the hearing and as confirmed by the photographic evidence provided, [the applicant] has a genuinely warm and affectionate relationship with [Ms A] and both of her children.  Despite the fact that the children sat at the rear of the hearing room for the first half of the hearing, they spontaneously joined [the applicant] and [Ms A] at the hearing table when [the applicant] and [Ms A] were asked about how they met, how their relationship grew, the impact of [Ms A’s] husband’s death in 2018 on her family and [Ms A’s] description of [the applicant] now proactively, on a daily basis, filling the role of a father-figure for her 2 young children.  The Tribunal notes that [Ms A’s] [age]-year-old son jumped up onto [the applicant’s] lap and remained seated there, cuddling [the applicant] for the remaining hour or so of the hearing.  Her [age]-year-old daughter came to sit beside [Ms A] and, when the Tribunal indicated it had no discretion because it was evident - based on evidence provided - that it must affirm the delegate’s decision to refuse [the applicant’s] BVE visa application, she quietly shed copious tears in support of [the applicant] and her mother, alternating between looking at her mother, [the applicant], the Member, and her hands which were clasped on her lap. 

35. The Tribunal observed during the hearing that, although the Guidelines refer to considerations by the Tribunal contemplating referral of a matter to the Minister under s 351, s 417 or s 501J of the Act and, as such, it would be inappropriate to refer this matter to the Minister since [the applicant] has applied to the Minister under s 195A of the Act, it would nonetheless make some observations in its decision about the clearly evident love, affection and respect that [Ms A’s] children (and [Ms A]) have for [the applicant]. It referred [the applicant] and [Ms A] to the NSW Law Society’s website for contact details of accredited immigration law specialists, many of whom have considerable experience with Ministerials and who may be able to assist the couple further in this regard. It also discussed the nature of additional documentation which may be lodged in support of their s 195A application to the Minister including evidence of [Ms A’s] husband’s Death Certificate, the Birth Certificates of her children as well as signed and dated letters from family and friends supported by evidence of their residence status in Australia including, if relevant, evidence of Australian citizenship. Finally, the Tribunal recommended lodging a copy of the couple’s Marriage Certificate with the Department for referral to the Minister.

36. In passing, the Tribunal notes it expressed sympathy (as did the differently constituted Tribunal[4] in its reported decision of 3 October 2022 referred to above at para [9]) for the situation that [the applicant] and his family, especially, [Ms A] and her 2 young children find themselves.  It also expressed its best wishes for their wedding to be celebrated on [a day in] January 2023.  The Tribunal acknowledged [the applicant’s] expressed contrition for the events in early 2014 which led to him being convicted of persistent sexual abuse of a child, his 7½ year jail sentence and his current detention in the [named detention centre].  It complimented [the applicant] for his demonstrated commitment to on-going personal and professional development as evidenced by his completion of the qualifications referred to above at para [13], in particular, [Agency 1’s] [parenting] course completed 16 December 2022.   

    [4] Ibid n 1 at para [19]

    decision

37. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

    Katie Malyon
    Member