2407121 (Migration)

2407121 (Migration) [2024] AATA 2297 (15 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Sunny Chandra (MARN: 0959742)
CASE NUMBER:  2407121
MEMBER:De-Anne Kelly
DATE:15 April 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 15 April 2024 at 1:13pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful non-citizen – grounds for seeking the visa – will apply for a substantive visa – pending Ministerial Intervention request – abide by conditions imposed – reporting and notification requirement – no criminal conduct requirement – security bond – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73, 195, 195A, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.221, 050.223, 050.224; Schedule 8, Conditions 8401, 8506, 8564
CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
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).
The applicant applied for the visa on 26 March 2024. 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 050.212(2)-(9) and cl 050.223.
The decision to refuse to grant the visa was made on 2 April 2024 on the basis that the applicant did not satisfy cl 050.212(1) and cl 050.211 because he did not meet the requirements for either a Bridging visa (Class WE) general (Subclass 050) nor did he meet the requirements for a Bridging E (class WE) Protection visa (subclass 051) visa. The delegate also found that the applicant did not satisfy cl 050.223 because he would not abide by the discretionary condition 8564 – The holder must not engage in criminal conduct- as he had this same condition imposed on three previous Bridging E Visas granted to him with subsequent Court Outcomes and Queensland Police Interventions indicating that he had breached this condition. As a consequence, the delegate was not satisfied that the applicant would comply in the future.
The applicant appeared before the Tribunal on 11 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A] the spouse of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review. The agent was forwarded the hearing invitation and it was not returned to sender indicating it was received however the agent claimed that he had not received it and asked for advice about the hearing date and time. The registry sent the link to the hearing but had not advised the date and time. The registry spoke to the agent on the day of the hearing, and he confirmed he would attend but could not join by video link but by telephone. It took the hearing attendant many attempts to join the agent to the hearing. The agent advised that he was in a remote part of India and this made communication difficult.
On the day of the hearing the applicant advised that he wished his wife and child to give evidence so there was a brief delay while the hearing attendant contacted the wife to join the hearing by telephone. The wife had been unable to join by video and also advised that the child was unwell and sleeping and was not joining the hearing. It took nearly an hour and a quarter for these matters to be resolved. It was noted that there were some technical difficulties with the connection from the detention centre and several delays however a good connection was finally made, and the hearing progressed.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Procedural matters
Adjournment
A brief adjournment was granted at the time there was a changeover of interpreters.
Interpretation
The applicant confirmed that the two interpreters were clearly understood and in fact responded to some questions in English indicating that he had a reasonable grasp of English.
Section 359AA of the Act
At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent.
The applicant was provided with time until midday 12 April 2024 to respond to concerns raised by the Tribunal and to make further submissions.
Section 359AA provides as follows:
(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information
CONSIDERATION OF CLAIMS AND EVIDENCE
The [applicant] is a [age]-year-old man of Indian citizenship and holding an Indian passport who has been in immigration detention [from] September 2023. The agent submits that the applicant was married in 2015 to an Australian citizen wife [Ms A] who has a [age]-year-old son that while not a biological son of the applicant has a strong mutual bond with him particularly over the applicants support for the boy’s [sporting] career. [Ms A] lives in [Town 1] in North Queensland, is on Centrelink benefits and suffers from stress and anxiety. [Ms A] stated in a statutory declaration that the couple for medical reasons is unable to conceive a child and explains her health issues and the reliance she has on her husband as well as the detrimental effect the separation is having on the family. It is noted that the second page of the statutory declaration is illegible.
Evidence shows the child is very talented and involved with [Sport 1]. [The applicant] is very supportive of the child’s school and his [sport] and has driven him to [Sport 1] practice and other pursuits. In 2019 the family moved to Adelaide for two years such that the child could attend [a named Sport 1] Academy. [The applicant] has completed a number of courses in detention including anger management and domestic violence management. [The applicant] has worked as a labourer on a [fruit] plantation for some 18 years.
Health assessments by a Psychologist of [the applicant] from within detention notes that he has trouble sleeping and worries about his family. He has some shoulder pain which is being treated with medication. The Psychologist notes “Denied any thoughts of self-harm, suicidal ideation or violence. Denied experiencing any symptoms of mental illness or mood disorder.”
It is noted in the report that [the applicant] came to Australia to study [Subject 1] but upon the death of his father could not financially continue with his studies. His Mother lives on his late father’s pension and also supports his divorced sister and her [children]. It is noted that he did contemplate returning to the Punjab as an option and he would have done so if he were single but he has is in a relationship and has a son who needs him and a family “who he adores”.
[Ms A] and the child visited [the applicant] in detention which was expensive and distressing for the entire family.
A bank balance for a [Ms C] in India was provided to the Tribunal and evidence of a life insurance policy dated 2008.
A support letter from a friend dated 7 February 2024 states that he owns a [fruit] plantation and is offering to provide financial support to the applicant for food, rent, utilities bills and medical expenses while he waits for his Ministerial Intervention request to be considered. More about this Ministerial Intervention request is provided below. Payslips for this friend indicate that he earns a good salary from his work,
Another friend [Mr D] has written a support letter stating that he is sending support payments to [Ms A] and her son. He also states that he owns a business and will support [the applicant] and his family until a decision is made on the Ministerial Intervention request. He states that [the applicant] is a devoted family man and the child is excelling at [Sport 1] and maturing into a fine young man through his loving parents attention. He states that he can produce bank statements and the business name and ABN if needed although they are not presently provided.
A letter of support from a member of the [specified] Sikh temple in [Town 1] attest to the applicant’s volunteer work and strong work ethic as well as his devotion to his family and in particular his stepson with regard to his studies and [Sport 1].
A letter from the stepson March 2024 expresses his reliance on [the applicant] since he was 5 years of age and the support that [the applicant] gives in terms of preparing meals, arranging [Sport 1] training and other support when [Ms A] is unwell. He misses and loves his father very much and does not understand why he is away from them. He is also missing a lot of training and [Sport 1] matches because his mother is unable to drive him.
A submission the agent made 12 February 2024 gives an overview of their Ministerial Intervention request under s195A of the Act (as shown below) to be granted a substituted sc 600 visa which would allow the applicant to apply onshore for a Subclass 804 Aged Parent visa sponsored by the child. The applicant is not affected by s48 criteria or age criteria nor by the balance of family test and would be eligible to apply for the 804 visa if granted a substituted 600 visa.
MIGRATION ACT 1958 - SECT 195
Detainee may apply for visa
(1)  A detainee may apply for a visa:
(a)  within 2 working days after the day on which section   194 was complied with in relation to his or her detention; or
(b)  if he or she informs an officer in writing within those 2   working days of his or her intention to so apply--within the next 5 working days after those 2 working days.
(2)  A detainee who does not apply for a visa within the time allowed by subsection   (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.
The Ministerial Intervention request is being made on the grounds of strong compassionate circumstances that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit (where at least one member of the family is an Australian citizen or Australian permanent resident) namely [Ms A]. They believe that the Convention on the Rights of the Child may also be invoked in respect of [Child B] aged [age] years.
Letter 18 March 2024 from the agent to the Minister regarding the Ministerial Intervention request lodged on 16 October 2023 and containing some observations from the previous Member who affirmed [in] February 2024 the review application into the previous Bridging Visa E refusal. That member found the family bonds were strong and genuine and that the wife and child were suffering from the detention of the applicant.
The submission also addresses the applicant working while under condition 8101 which precluded him from working but states that he needed to provide for the family. It also addresses the domestic violence which the agent states is in the past and that the applicant has reformed his anger management. The agent in this submission states that the decision maker must consider Ministerial Direction 90 which prioritises the best interest of the child.
A significant number of happy family photos were submitted.
On 4 April 2024 the applicant submitted a statement addressing his wife’s poor health and his devotion to his wife and son. They are reliant on him. He accepts that he made some mistakes with his visa process and states that he will be a truthful and trustworthy person and follow all the conditions imposed if a Bridging Visa E is granted.
The applicant submitted an undated statutory declaration without a witness declaring that he is prepared among other things to lodge a security deposit, he is remorseful of working without permission to work, he would consider returning to India to lodge an offshore partner visa and finally that this wife has made a commitment with “God as my witness” that she will ensure he meets his visa conditions and attends any meetings with immigration.
The issue in this case is whether the applicant satisfies cl 050.212 and cl 050.223 which provide as follows.
050.212
(1) The applicant meets the requirements of subclause (2), (3), (3A), (4), (4AAA), (4AA), (4AB), (5), (5A), (5B), (6), (6AA), (6A), (6B), (7), (8) or (9).
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.
The Hearing
Migration History
The Tribunal put to the applicant in the hearing under s 359AA his migration history as below and provided in the decision of the Tribunal 15 February 2024 but differently constituted.
He ([the applicant]) first arrived [in] March 2009 holding a Subclass 572 TU student visa that ceased on 9 June 2011. He was not granted a subsequent Subclass 570 visa, and, following an unsuccessful appeal process that resolved on 17 August 2012, he sought Ministerial intervention under s 351 of the Act. According to Departmental records, he held successive bridging visas awaiting the outcome of that application, until 12 December 2012. The delegate noted in their decision that the Minister did not consider his request for intervention and that matter was finally closed in October 2012. The relevance of his Ministerial intervention application under s 351 is considered further below.
4. According to Departmental records, after the cessation of his Bridging E visa on 12 December 2012, he remained living in the community without a valid visa until making an application for a protection visa on 27 November 2013. That application, along with another made on 2 December 2013, was deemed invalid, but he made a valid application on 10 December 2013 and a bridging visa was granted on that date. On 27 May 2014, his application for a protection visa was refused by the delegate and after seeking review at the
Refugee Review Tribunal, the delegate’s decision was affirmed on 11 May 2015.
5. On the natural cessation of his bridging visa following his protection visa refusal, [the applicant] again, remained in Australia unlawfully for 12 months, from 8 June 2015 to 8 June 2016. He was granted a bridging visa on 8 June 2016 following lodgement of an application for a partner visa. The partner visa application was refused on 11 October 2016, and [the applicant] applied to the Tribunal for a review of that decision, but the Tribunal affirmed the delegate’s decision [in] November 2017. This time, [the applicant] sought judicial review of the Tribunal’s decision, and he held bridging visas while he awaited the court’s determination. [In]
August 2018, the judicial review process failed.
6. Having seemingly exhausted all options available to him, on 9 October 2018, [the applicant] applied for a medical treatment visa and he received a bridging visa in connection with that application. The medical treatment visa application was refused on 10 October 2018 and again, [the applicant] applied to the Tribunal for review of the delegate’s decision. [In] November 2020, the Tribunal affirmed the delegate’s decision in relation to his medical
treatment visa application.
7. The associated bridging visa for [the applicant]’s medical treatment visa naturally ceased and from 25 December 2020 to 24 September 2021, he was again living in the community
without a visa. He obtained another bridging visa that ceased on 26 October 2021, and he
has not held any valid visa since that time. [The applicant] was detained on 27 September 2023 and he has remained in detention at the [immigration detention centre] since then. Extraordinarily, it appears that [the applicant] has not left Australia once in the nearly 15 years he has lived here. He confirmed at hearing that he did not return to India for his father’s funeral in 2009 because his family did not alert him of his father’s passing in time for him to make arrangements to be with them at that time.
8. The decision to refuse to grant this Bridging E visa was made on 5 February 2024 on the basis that [the applicant] did not meet cl 050.212 nor cl 050.223.
The Tribunal differently constituted affirmed [in] February 2024 the refusal of the Bridging Visa E application made on 5 February 2024. The applicant lodged a new Bridging Visa E application on 26 March 2024 which was refused by the delegate on 2 April 2024 and subsequently the applicant applied for review which was acknowledged by the Tribunal on 5 April 2024 and is the case that is presently being considered.
It seems to the Tribunal that [the applicant] has been an unlawful non-citizen UNC for at least the following periods.
12 December 2012 – 27 November 2013
8 June 2015 – 8 June 2016
25 December 2020 – 24 September 2021
26 October 2021 – present day or some 2 years and 5 months
[The applicant] made a comment on this and said in 2011 his father died, and he missed the classes and was then denied enrolment and after that tried various colleges and finally sought Ministerial Intervention to get a visa this way. He confirmed that the history was correct saying “it is truth”.
The Tribunal asked [the applicant] why he wanted a Bridging Visa E granted. He stated that he and his wife and child had been together for 13 years and married for eight and a half years.
His wife is sick and the child is stressed as evidenced by him sleeping on the day of the hearing. He is very close to the child and cooks for him when his wife is sick making butter chicken and Indian curries. He takes care of the boy. His wife only has a learners permit and relies on him to drive them.
[Ms A] gave evidence regarding their 13 years together and the fact that she has difficulty sleeping. [The applicant] cooks for them. She is depressed and anxious and only has a learner’s licence and has to take taxis to travel to [Town 2] and [City 1] for her son’s [Sport 1]. As a result, the child missed 5 to 6 weeks of [Sport 1] training which should occur twice a week. He has been up at 4.00am the morning of the hearing and was nauseated and needs his father figure back with him. The separation is having a detrimental and “massive” effect. [Ms A] has to take him to the Doctor.

The Tribunal acknowledges the evidence supporting the child’s passionate attachment and proficiency at the sport of [Sport 1]. It is evidently a large part of his life and has been encouraged and supported by the applicant. The Tribunal accepted the strong family bonds and the dependence of [Ms A] and her child on the applicant.
The Tribunal accepted that the separation was having a detrimental effect on the family however it advised that it cannot make new laws and had to be satisfied that the legislative requirements were met. The Tribunal advised the applicant of the reasons the delegate refused the Bridging Visa E and said they would address these in the hearing. The applicant stated he would not commit mistakes again and was sincere toward his family.
The agent advised that they had sought Ministerial Intervention under s 195 and s197and that the delegate had “dodged” his responsibilities and was wrong in his decision. He asked the Tribunal to set aside and grant the Bridging Visa E so that when the substituted Subclass 600 visa is granted they can apply for the Parent visa. He considers that the detention is extra judicial punishment since the Minister is busy.
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 must continue to satisfy this criterion at the time of decision: cl 050.221.
The applicant is an unlawful non-citizen (UNC) at the time of application and at present and therefore satisfies cl 050.211(1).
The applicant has not been refused immigration clearance nor has the applicant been the subject of a decision by the Minister regarding removal from Australia and therefore the applicant is not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17) and therefore the applicant satisfies 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 agent advised in the hearing that the applicant is not seeking to meet any other criteria in cl 050.212 other than cl 050.212(3)(b). The applicant does not claim to meet any of the other alternative criteria in cl 050.212.
For the reasons below, the applicant does not meet cl 050.212.
cl 050.212(3)
(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.
The Tribunal asked what the visa was that the applicant was intending to apply for to satisfy 050.212(3)(b) and the agent responded saying that following the successful Ministerial Intervention request under section 195 of the Act, the applicant would be granted a substituted 600 subclass visa and would then apply for a Subclass 804 Parent visa sponsored by [Child B]. It is noted that the applicant has been detained from 29 September 2023 and applied for the Ministerial Intervention on 16 October 2023.
The Tribunal noted that the relevant section of the Act that applies to this Ministerial Intervention request was as below.
MIGRATION ACT 1958 - SECT 195A
Minister may grant detainee visa (whether or not on application)
Persons to whom section applies.
(1)  This section applies to a person who is in detention under section   189.
Minister may grant visa
(2)  If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3)  In exercising the power under subsection   (2), the Minister is not bound by Subdivision AA, AC or AF of Division   3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4)  The Minister does not have a duty to consider whether to exercise the power under subsection   (2), whether he or she is requested to do so by any person, or in any other circumstances.
The Tribunal put to the applicant under s359AA that it cannot be satisfied that the clause is met as it is all supposition that these events will play out as the applicant expects. The Tribunal stated it had not made up its mind and would welcome further information and evidence but was concerned that the clause requires that a decision by the Minister be made under a “public interest” criterion.
[The applicant] responded and said everything is for the child and requested time to collect more evidence.
The agent advised that there has been a substantive change in circumstances and now the applicant is married, and they are confident that the Minister will grant the substituted Subclass 600 visa and under the PAM guidelines they can use a substituted 600 to apply for a 804 Parent visa and [the applicant] does not have to satisfy the age requirement. They have been waiting patiently for the Minister and are concerned for two vulnerable people living in a remote area and suffering. The agent advised that they had approached the local member and has his support. The agent stated that with all these factors the merits of the Ministerial Intervention request would allow it to be made in the public interest.
The Tribunal advised that it consider these arguments very carefully and advised that additional information could be submitted by midday on 12 April 2024 and would also be carefully considered. It further advised that a decision would be made on Monday 15 April 2024.
Post Hearing
Following the heating the agent submitted emails in the form of a link however the Tribunals firewall does not allow access to material submitted in this format. The registry emailed the Agent on Friday 12 April 2024 at 15.10 as follows.
Dear Mr Chandra,
We are unable to open documents shared as external link.
Please refer to the Practice Directions regarding providing documents to the AAT for details.
Please forward your submissions to the Tribunal in a word or PDF format immediately.
Alternatively, please upload your submission and evidence via the online portal.
Please also provide the AAT with a complete Form MR5 (Appointment of Representative) in order that we can communicate with you as the authorised representative of the Review Applicant.
It is noted that there was a document sent by the agent at 15.23 on Friday 12 April 2014 however it is not clear whether this was in response to the Tribunals request.
On Monday 7.40am 15 April 2024 the registry concerned that there had been no confirmation from the agent that the material sent as above was in fact the material in the format that could be opened and was labelled “AAT March 2024” sent a further email as below.
Dear Mr Chandra,
Please confirm immediately whether the document attached to your email below under the name “AAT March 2024” is the same as the one submitted to the Tribunal under the name “MI Submission 16-10-2023”- attached for your reference.
We are unable to open the document named “AAT March 2024”. Please provide a copy of this document immediately.
Please also provide the AAT with a complete Form MR5 (Appointment of Representative) in order that we can communicate with you as the authorised representative of the Review Applicant.
At 9.28am 15 April 2024 the agent sent an email which was the same as that sent on the day of the hearing which started with the words “Thank-you for hearing our client [the applicant] and his wife [Ms A] today…” However, there was no confirmation that this material was in fact the same material as “AAT March 2024” which could not be opened by the Tribunal.
It is noted that the agent then emailed at 10.52am the form MR5 confirming his representation but again no confirmation regarding the material labelled “AAT March 2024”. It is noted that the agent was up and not in bed at the time he sent the form.
The Registry then at 10.52am attempted to telephone the agent since he was up and not in bed, but his phone did not answer, and the phone does not have the capacity to accept messages, so the registry was unable to leave a message asking him to return the call.
It is noted that shortly after this the agent emailed two submissions, one of which was the 16 October 2023 Ministerial Intervention request and further copy of the letter the agent submitted on 12 April 2024 which started “Thank-you for hearing our client [the applicant] and his wife [Ms A] today…
The Tribunal considers that it has given the applicant through his agent every opportunity to provide material relevant to the decision and considers that the above two submissions are the material referred to as “AAT March 2024” which could not previously be opened. It considers it is reasonable to proceed to a decision on this basis.
An email received at 11.03am on 15 April 2024 from the agent confirmed that the submissions already received were the one’s in question however at the same time he submitted a statement from [Ms A]. This was a plea for the Tribunal to return her husband to them because of her ill health and the strong sense of loss that her son feels. Her son has lost interest in getting his drivers license and it has affected his [Sport 1] training with him missing many weeks of the season. The Tribunal has considered this request from [Ms A] and acknowledges the pressure and distress on her and her son as a result of [the applicant]’s detention. However, while acknowledging the compassionate circumstances of the family, the Tribunal is bound to consider the legislative requirements and whether they have been met for the grant of a Bridging Visa E.
Following the hearing the applicant submitted a statement on 11 April 2024 declaring that the welfare of a minor Australian citizen child “who may one day play [Sport 1] for Australia, but is depressed now, Should be top Priority” and “welfare of [age] years old Australian citizen (my wife) disability benefits, and a (sic) depressed. Should be 2^nd top Priority”. The applicant states that he will definitely lodge the Parent visa as soon as the substituted subclass 600 visa is granted by the Minister. He says the second Ministerial Intervention request is not of concern as the circumstances have substantially changed. He states that he will definitely comply with the visa conditions 8401, 8506 and 8564. The applicant offers a security deposit from his mother, his friend and even his lawyer and his wife who have offered to submit a bond for him.
While the Tribunal acknowledges the welfare of the family is important and has considered [the applicant]’s statement it is bound to consider whether the legislative requirements are satisfied for the grant of a Bridging Visa E.
The agent submitted a letter 12 April 2024 which started “Thank-you for hearing our client [the applicant] and his wife [Ms A] today…” and stated that they were initially concerned that the applicant’s vexed migration history would see him subject to bias by the department, but they were satisfied that the Member in this case is convinced of the strong family ties and the detrimental effect on the wife and stepson if the applicant remains in detention. He states that they note the Member in this case is “apparently unconvinced but has an open mind on our clients meeting with” cl 050.212(3)(b). He goes on to say that “with respect that we ourselves are waiting to see what the Minister will decide in respect of the Ministerial Intervention request of 16 October 2023” but they believe that the primary factor must be the welfare of 2 Australian citizens, [the applicant]’s wife and stepson, and the Convention on the Rights of the Child.
The agent has submitted at 15.23 on 12 April 2024 as evidence the original Ministerial Intervention request of 16 October 2023 which goes through the applicant’s visa history and the fact that he has exhausted any options and while he could go offshore and apply for a Partner visa this would be “unreasonable” considering his wife’s welfare and health issues and the prolonged decision time would disadvantage the stepsons schooling and career prospects. The agent goes through the process described elsewhere in this decision of using the grant of a substituted Subclass 600 visa to apply for a Parent visa sponsored by the Stepson.
However, the Tribunal notes a cautionary note in the agent’s submission where he states.
We notice with some trepidation, however, that in PAM Guidelines it says, “officers should note that Australian citizen/permanent resident children under 18 years old cannot sponsor their parents although the Regulations allow for other prescribed persons to sponsor the parent, including a close relative or guardian of child or a community organisation, and generally the "substituted Subclass600 visa" option should not be presented to the Minister in these cases”.
The agent notes another factor mitigating against the request being the fact that the applicant is an unlawful non-citizen and notes that the Ministers Guidelines on cases that are inappropriate to consider includes the requirement “I expect a person requesting my intervention to be a lawful non-citizen in the community when they make their intervention request and remain a lawful non-citizen until that request is finalised.” The agent addresses this concern by stating that they are applying for a Bridging Visa E which will give the applicant lawful status.
The Tribunal has carefully considered the evidence and readily accepts that the family bonds are very strong, and that [Ms A] and [Child B] depend on the applicant to a great degree and that he is pivotal to their welfare and particularly [Child B]’s schooling and [Sport 1] prospects.
The Tribunal has considered the clear and unambiguous working of 050.213(3)(b) namely,
“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.” (Emphasis added)
It is accepted that [the applicant] is sincere in his intention to apply for the Subclass 804 Parent visa however this it is far from certain that the applicant “will apply” since it depends on the following.
·Whether the Minister will in fact consider the request at all as he is not obliged to do so.
·Whether the case will be rejected for consideration because the applicant is unlawful, as foreshadowed by the agent in his submission.
·Whether the case will be rejected for consideration because the sponsoring child is under the age of 18 years and another person or entity must be the sponsoring entity, as foreshadowed by the agent in his submission.
·Whether if the case is considered, it is found to meet the “public interest” criteria. While these are matters for the Minister to weigh and the Tribunal does not wish to speculate on the Ministers decision, it is not clear that a case which has a strong personal interest namely the welfare of [the applicant], [Ms A] and [Child B] would be such that it could be said to be in the “public interest”. It is noted that the agent in the hearing said that the welfare of the family was in the public interest but offered scant evidence to support that view.
·Whether if the case is considered, it is found to meet one of the criteria for allowing the Minister to grant a Substituted Subclass 600 visa.
Taking all into account the Tribunal cannot be satisfied that the applicant will be granted Ministerial Intervention and a Substituted Subclass 600 visa and if he is not then he will not apply for a substantive visa namely an 804 Parent visa moreover he will have exhausted all options to apply for any substantive visa.
Although it was not specifically addressed by the applicant and his agent the Tribunal has considered whether the application for Ministerial Intervention request and the request to grant a substituted Subclass 600 visa would satisfy cl 050.212(3)(a) as below.
cl 050.212(3)
(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
It is noted that the applicant must have “made” a “valid application”. It is noted that valid applications are acknowledged by the Department inn writing and it is further noted that there is no Substituted Subclass 600 visa listed in the Schedule 2 list of visas in the Migration Regulations which lists the legislative criteria that must be met for a “valid application” to be made for any visa Subclass. The applicant does not have a written acknowledgement of a valid application for a Substituted Subclass 600 visa from the Department which suggests that no valid application was made.
This is further supported by the intent in s 195A which is not about permitting visa applications to be made and so would not fall within 050.212(3)(b). Section195A is only a power to grant a visa, whether or not an application has been made for the visa. It is not like the Minister's power under s48B to lift the bar to permit the person to make a valid visa application.
The Tribunal for the reasons above does not consider that the Ministerial Intervention request and request for the Minister to grant a Substituted Subclass 600 visa is a valid application made for a substantive visa and therefore does not satisfy cl 050.213(3)(a).
The Tribunal finds that at the applicant does not satisfy cl 050.213(3)(a) and does not satisfy cl 050.212(3)(b) and therefore does not satisfy cl 050.213(3) and thus does not satisfy 050.212.
Whether the applicant continues to satisfy the time of application criteria - cl 050.221
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 of the kind set out in sub regulation 2.20(7), (8), (9), (10), (11) or (17).
The Tribunal finds that at the time of decision, the applicant continues to satisfy cl 050.211 and cl 050.212 and therefore does meet cl 050.221.
Whether the applicant will abide by conditions - cl 050.223
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.

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.
The Tribunal asked the applicant if he is considering offering a security deposit and that while it must be within the means of the applicant it must be sufficient to ensure compliance with the conditions considering the migration history and breaches of the migration laws.
The applicant responded that it is a matter of my “child’s life”.
The applicant stated that he would offer a security of up to $40,000 and the monies would be contributed from his mother in India and the other is to come from a friend who is a businessman. In later correspondence he asserts that the agent and his wife will also contribute towards the security deposit although it is noted that the agent has not specifically stated in the hearing or through subsequent correspondence that he would do so.
The applicant explained that the house in [Town 1] is rented. He also explained that the family re-located to Adelaide some years ago for a period of two years such that the child could be enrolled in a [Sport 1] academy in order to play professional [Sport 1].
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:
·8401 –The holder must report at a time/or times, at a place specified by the Minister.
·8506 –The holder must notify the Immigration at least 2 working days in advance of any change in the holder’s address.
·8564 –The holder must not engage in criminal conduct
[Ms A] said he would agree to meet these conditions.
The Tribunal advised it had not made up its mind and was open to further information as evidence as to whether he would satisfy 050.212 and 050.223. Further submissions were to be provided by 12 noon Queensland time Friday 12 April 2024.
Closing statements
[Ms A] as a closing statement said that she and her son would appreciate [the applicant] home. They have asthma and there is black mould everywhere and it would be wonderful for her son to see his dad again. They both really miss him and need to move on with their life. She is [age] years of age and wants to get her P plates. What sort of life she said for two Australian citizens and all over a simple mistake that [the applicant] was trying to rectify?
[The applicant] made a closing statement and said that reiterated it was about his

kids’ life and he met him at 5 years of age and wanted to fulfil his responsibilities and look after him into the future.
Mr Chandra re-iterated much of the arguments put already and said that there is an insurance policy in India and that would be the source of funds for the security deposit however the applicant’s mother is uneducated, but she will make a statement to that effect. There are compassionate and compelling circumstances, and they will wait for the Minister to see the file personally.
Consideration.
It is noted that the applicant is not remorseful over his numerous breaches of Australian migration law and instances of unlawfulness although he does acknowledge that he has made mistakes.
[The applicant] and [Ms A] appear to have no plans in the event of the Minister not considering or rejecting the request. With no visa options left it would seem that the couple could have considered that [the applicant] may need to return to India and lodge a Partner visa offshore accepting that he may have an exclusion period and detention centre debts to re-pay. The agent considered that an Offshore visa application was “unreasonable”. The couple have given the Tribunal scant assurance that they are prepared as a family to move forward with a lawful plan in the event of an unsuccessful Ministerial Intervention request.
The Tribunal has considered the offer of a security bond of up to $40,000. It is noted that in post-hearing submissions the agent and applicant have asked the Tribunal to nominate an amount as a security bond.
It is noted that there is scant evidence of the businessman or the agent and his wife offering monies. Although the applicant’s mother in India has had her bank balance shown and evidence of an insurance claim there is scant evidence of whether the applicant’s mother is willing to provide these funds nor the quantum of the funds.
However, the Tribunal will give the applicant the benefit of the doubt and accept that monies up to $40,000 would be provided as a security deposit.

100. The Tribunal has to consider whether such a security deposit would encourage the applicant to abide by his Bridging Visa E conditions. It is noted that [Ms A] has stated that by “God” she would ensure that the applicant meets his visa conditions however it is noted that at the time of detention by Border Force that the applicant has been unlawful for almost two and half years and [Ms A] had not encouraged him to regularise his visa status in that period of time so little weight is given to [Ms A]’s assurances.
101. The applicant has stated that he will abide with his visa conditions however it is noted that he has had scant regard for Australia’s migration laws in the past and has been unlawful for at least the following periods of time.
12 December 2012 – 27 November 2013
8 June 2015 – 8 June 2016
25 December 2020 – 24 September 2021
26 October 2021 – present day or some 2 years and 5 months

102. It is also noted that there is no guarantee that the applicant will be successful in his Ministerial Intervention request which was made some five and half months ago. The question for the Tribunal is whether the applicant would abide by his conditions in the evidence of an unsuccessful Ministerial Intervention request and having exhausted all visa options would leave Australia and seek to lodge a Partner or other visa application offshore in India. Had [the applicant] does this some 3 years ago it is very likely that he would now be back in Australia on a Partner visa with a path to permanent residency since the couple have been married and lived together for many years. However, the couple did not see this as a path forward for them and allowed [the applicant] to remain unlawful until he was detained by Border Force. It is noted that the agent refers to an Offshore visa application plan as “unreasonable”.
103. [Ms A] emphasises her dependence and that of the chid on [the applicant] and it is doubtful that she would forego this to encourage him to apply offshore for a visa even though it may be the lawful path forward for them as a family. The family rent their house and have re-located to Adelaide for two years in the past albeit for [Sport 1] training for the child. Despite a security bond the Tribunal considers that the history of unlawfulness, the pressure from [the applicant] and her son to continue to support them and the ease with which they can re-locate somewhere else where [the applicant] could be an unlawful non-citizen as he has in the past, would see [the applicant] break his visa conditions in the event of an unsuccessful Ministerial Intervention request. It is noted that the success of a Ministerial Intervention request is problematic for the reasons given in [73] many of which were identified by the agent. As an unlawful non-citizen, the applicant would not engage with the Department and would not meet conditions 8401 and 8506 as below.
8401 – Report as directed.
104. The Tribunal finds for the reasons give above that the applicant will not abide by condition 8401 – Report as directed.
8506 – Notify change of address.
105. The Tribunal finds for the reasons give above that the applicant will not abide by condition 8506 – Notify change of address.
8564 – must not engage in criminal conduct.
106. The Tribunal finds that the applicant will abide with this condition since he has attended a number of self-management classes regarding a domestic violence and other evidence supports that he is not a threat to the community.
Whether a security has been lodged - cl 050.224
107. 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 for the reasons above.

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 050.224. However, if not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl 050.224 is not met.

109. Accordingly, the applicant does not meet cl 050.224.
110. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
111. 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
112. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
De-Anne Kelly
Member

[2024] AATA 2297

15 April 2024

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