Australian Immigration Daily News

Sometimes, truth is stranger than fiction! 

And sometimes, the facts in migration cases are truly out of the ordinary, unusual, or just plain “wacky”! 

And sometimes, a person’s migration history is so “checkered” or questionable that when they encounter problems under the migration legislation, they are left in a position of “grasping at straws” , or trying to “toss arguments at a wall and hoping that one sticks”! 

All of this is illustrated by a case that was decided in the Federal Circuit Court at the end of March, Taylor v Minister for Immigration & Anor (2016) FCCA 660 (30 March 2016). 

What was this case all about? 

It involved an application for judicial review from a decision of the Tribunal which affirmed the Department’s refusal of a Bridging Visa E (Subclass050). The BE had been sought by the applicant to enable her to be released from immigration detention pending review of a decision by the Department to refuse the applicant – a New Zealand citizen – a protection visa. (I might observe here that it seems that the prospects that any citizen from New Zealand could get a protection visa would appear to be so infinitesimally small that one would need an electron microscope to detect them – but I digress!!) 

The background of the case was that the applicant had originally arrived in Australia in March 2009, as reported in the Court’s judgment “under an assumed identity on a passport that she had bought in a public hotel”. It is not explained in the decision why this was the case, but obviously there must have been some “back story” here as of course in the ordinary course New Zealanders would not have any difficult entering Australia on their own passports. (One might also wonder where in New Zealand one would go to find a public hotel where there is an active trade in fake passports!) 

In any event, in August 2010, the applicant was arrested by the police in the Northern Territory on charges of possession of prohibited drugs. As a result of this arrest, she came to the attention of the Department of Immigration.  Her visa was cancelled in September 2010 on the basis that she had given false information when entering Australia, and she was placed in immigration detention. 

Instead of seeking review of the visa cancellation, the applicant escaped from immigration detention!! 

(One wonders how that could have been possible! And whether the security procedures at detention centres are so “lax” that someone could “escape”.  I guess this question can only be answered by reference to the famous lyric from the American musician Fats Waller: “One never knows, do one!”) 

Ultimately, 5 years later, in August 2015, the Department located the applicant in Sydney and she was again placed in immigration detention. 

The reason that the applicant sought the BVE was stated to be the applicant’s wish to “spend more time with her three year-old son” and to get dental treatment. 

The Department’s delegate refused to grant the BVE because the delegate was not satisfied that the applicant would comply with the conditions of the bridging visa.  Likewise, the Tribunal took the view that given the applicant’s adverse immigration history, “no amount of security would satisfy it that the applicant” would comply with visa conditions requiring her to refrain from working in Australia; to report to the Department periodically; to notify the Department of any change of address; and to refrain from engaging in criminal conduct. 

So, what submission did the applicant make to the Federal Circuit Court to try to reverse the decision of the Tribunal? 

She claimed that the Tribunal had failed to identify the best interests of her child and take those interests into account in determining whether the BE should be granted.  

This submission was apparently premised on the fact that Australia is a signatory to the United Nations Convention on the Rights of the Child, and also apparently founded on a claim, based on the High Court’s decision in the case of Minister of State for Immigration & Ethnic Affair v Teoh, that the Convention gives rise to a “legitimate expectation” that the best interests of the applicant’s child would be taken into account when a decision was made concerning her visa application. 

Was this submission accepted by the Federal Court? 

No, it was not. 

The Court ruled that under the migration legislation, the best interests of the child are not a “primary consideration” when it comes to determining whether a BVE should be granted.  The Court held that the BVE could be lawfully issued only if the Minister was satisfied that the criteria for the grant of the visa in Part 050 of Schedule 2 were met.  It also noted that the criteria for a BVE, specifically clause 050.223, specify that the Minister must be satisfied that an applicant will comply with the conditions of the BVE if she/he is released into the community from immigration detention. And the Court observed that if the Minister, or the Tribunal on review, was not so satisfied, there was no power to grant the BVE. 

More fundamentally, the Court held that the legislative scheme relating to BVEs “leaves no room for consideration of the best interest of the child”. 

So the applicant’s attempts to overturn the refusal of the BVE on the grounds that the Tribunal had not taken the best interests of her child into account in refusing the visa was resoundingly rejected by the Court. 

The moral of the story: If an applicant puts her/himself in a position where they cannot satisfy the criteria for the grant of a BVE (or other type of visa), it is likely going to be extremely difficult to overcome the refusal with a “human rights” argument.

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.