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Tribunal: Senior Member C Puplick AM

The AAT set aside a decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Department) refusing to grant the applicant a bridging visa. The Tribunal found there were other reasons for him to stay in the interim and remitted the decision with the direction that his visa not be refused.

The applicant’s visa was refused on character grounds.[1] He had been convicted of possessing a marketable quantity of heroin and served a prison sentence of seven years and nine months and, following his release, was fined for a prescribed concentration of alcohol offence.[2] 

When a person’s visa application is refused, they can seek a merits review in the AAT. The AAT is required to consider the matters set out in Ministerial Direction no. 79 (the Ministerial Direction) which include protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia and the expectations of the Australian community (primary considerations). The Tribunal must also consider other factors, such as our international non-refoulement obligation and the strength, nature and length of a person’s ties to Australia (other considerations).

The Tribunal assessed the applicant as having a low risk of reoffending as he had abstained from drugs since his conviction and made considerable efforts at rehabilitation. This included improving his skills by further training, strengthening his relationship with his wife and participating positively in community activities.

When considering the best interests of minor children, the Tribunal found this matter weighed heavily in the applicant’s favour. Refusing the visa would not be in the interests of his children who, if he returned to Nigeria, would be deprived of the opportunity of getting to know and forming an attachment with him. While the father could hypothetically maintain contact using telephone or video chat, this is not practical given their young age, particularly his daughter who was preverbal.

While his offending after leaving prison weighed against the applicant, the Tribunal did not agree the drug offence, along with a review triggered by the drink driving offence, should combine to potentially result in him being deported.

The matters in the Ministerial Direction, when considered together, weighed significantly in favour of the applicant.

The Tribunal acknowledged its decision only settled matters in the short-term, with a final decision in the applicant’s substantive protection application yet to be made.

Read the full decision

 

[1] Migration Act 1958 (Cth), s 501(3A).

[2] Migration Act, s 501(7). A substantial criminal record is defined as a term of imprisonment of 12 months or more.