1. I now turn to the Direction. I usually set out in a number of paragraphs certain prefatory remarks in respect of the direction, and I do so again in the four paragraphs that follow.
2. The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
3. Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (8). I set out some of the salient features of these principles.
4. First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia, and the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen's conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
5. Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight 'generally' to the protection of the Australian community over other primary considerations, it also provides that primary considerations should 'generally' be given greater weight over other considerations.

1. I now turn to apply the Direction. The first primary consideration I must consider is the protection of the Australian community from criminal or other serious conduct. Paragraph 8.1(1) provides that decision-makers should bear in mind that the safety of the Australian community is the highest priority of the Australian Government. The Government is committed to protecting the Australian community from harm as a result of the criminal activity or other serious misconduct of non-citizens. Decision-makers should have particular regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are and have been law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. I bear this principle steadily in mind. Clearly enough, some of the offending in which the applicant has been involved has posed a direct threat to safety of the Australian community.
2. Decision-makers must give consideration as well to the nature and seriousness of the non-citizen's conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious misconduct. I turn now to consider the nature and seriousness of the applicant's conduct.
3. Paragraph 8.1.1(1) sets out, in sub-paragraphs (a) to (i), a number of matters to which I must have regard in considering the nature and seriousness of the applicant's criminal conduct. I agree with the delegate[17] that the offending involving the police chase was a serious matter. The applicant was driving at speed in a school zone at a time where children could be expected to be present. He proceeded across a roundabout in the wrong direction and forced other road users to take evasive action to avoid a collision. He was disqualified from driving at the time, and so there was a clear element of defiance in his behaviour as well.
4. I bear in mind the seriousness of the applicant's conduct. It is not difficult to imagine that an innocent person might well have been injured severely through the applicant's misconduct. I note that the applicant was convicted of dangerous driving, not merely driving at excessive speed. I agree with the delegate's view of the matter as expressed at paragraphs [24] to [25] of his or her reasons.[18]
5. The second offending mentioned by the delegate involved the applicant sleeping in a car with a weapon, which the applicant claimed was for his own protection. His situation was accepted by the magistrate as desperate,[19] and I proceed on the same basis.
6. On 4 November 2016, the applicant was found in possession of a pipe used for the smoking of methylamphetamine. It is clear that the applicant was a regular user of this drug.
7. There is nothing with which I disagree or that I would wish to qualify in the delegate's analysis of the situation as recorded at paragraphs [31] to [33] of his or her reasons.[20] I shall not set out these paragraphs, but they clearly show that the applicant had serious difficulties. I note in particular that the applicant had reoffended since one of his bridging visas was cancelled. That is an important and aggravating feature of the applicant's history.
8. I do not need to list the other offences in which the applicant has engaged. They constitute a large number. I note in particular that the record discloses an aggravated reckless driving offence in 2019 which preceded the most recent conviction for dangerous driving to escape police.
9. All in all, the applicant's criminal history gives rise to very serious concerns. I regard the road offending as of particular concern because it was well within the bounds of foreseeable risk that excessive speed and impulse-governed driving to avoid the police might lead to extremely serious consequences for other road users, including children.
10. It is also of concern that the applicant drove on this occasion whilst disqualified from doing so. Disqualification is an important way in which the law ensures that those who have breached road-rules cease driving to ensure a safer environment for others (whether drivers or pedestrians). The sentences imposed by the Courts were significant especially in relation to the last offending. Sentences of eight months and four months are a significant penalty.[21]
11. I accept that there has been a very great frequency of offending,[22] and I accept also that there is a trend of increasing seriousness both because the offending continued and because it has involved such serious driving offences. It is worth reiterating that dangerous driving can lead to very serious injury, and it is often just a matter of chance whether a dangerously driven vehicle injures another road user or not.
12. There is a cumulative effect of repeated offending upon the community, and I take this into account.[23]
13. The applicant provided demonstrably false information in this application by failing to indicate his criminal history, and I take this into account.[24]
14. I also take into account the fact that the applicant had entered immigration detention and then was removed from immigration detention only to reoffend in a very serious way. He had been granted a bridging visa in connection with his most recent application for a SHEV. That ought to have been seen by the applicant as a very important moment for him to re-evaluate his life.[25] He failed to do so and continued to offend.
15. I must consider the risks to the Australian community should the applicant reoffend. Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community from harm, decision-makers should bear in mind the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and harm that would be caused if the offending were repeated are so serious that any risk that it may be repeated may be unacceptable. I bear this principle steadily in mind.
16. I am to have regard to several matters 'cumulatively' when assessing risk. I must have regard to, first, the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct. I must also consider the likelihood of the non-citizen so doing.[26]
17. I have already indicated that serious injury fell well within the foreseeable consequences of the applicant driving recklessly or dangerously. I also regard the applicant's drug use as antisocial. I accept that the applicant has not been found guilty of supplying a drug; but those who consume drugs, whilst in one sense deserving of sympathy for any addiction they have, also contribute to the propagation and spread of illicit drugs in the community. A profitable trade requires customers, and users of illicit drugs aid that trade. I accept that they do not seek actively to promote the drug trade, but they promote it nevertheless.
18. There are a number of other offences in the record as I have said including trespass and theft. All these crimes are antisocial.
19. I agree with the delegate[27] that there is a real risk that the applicant will reoffend. There have been too many lapses in the past for one to accord a low risk. Indeed, the applicant had had a visa cancelled and been transferred to detention once before. He was released but squandered that opportunity.
20. So far as risk is concerned, however, there is a further matter to be weighed. The applicant is owed, as I have said, non-refoulement obligations. This is accepted by the respondent. The respondent accepts that there is no real prospect in the reasonably foreseeable future of the applicant being removed to a third country and so on that basis he was granted a bridging (pending removal) visa.[28] The practical reality of the situation is that if I affirm the decision under review, the applicant will remain in the community. I was informed at the hearing that certain restrictions applicable to his bridging visa have now been removed so he is largely free to move about in the community. So far as his risk in the immediate future is concerned, it seems to me that it will not make an appreciable difference whether I affirm the decision under review or not. As the applicant will be in the community either way, his risk profile will be more or less the same.
21. I do nevertheless accept that, viewed in the longer term, a decision to affirm the decision under review would mitigate the risk of any future offending because the applicant might well be removed to a third country at some future time, especially now that there is a possibility of the Government offering third countries financial inducements to accept non-citizens from Australia.[29] So I bear that in mind.
22. There is no family violence conduct to consider.[30]
23. I must consider the applicant's ties to Australia.[31] I accept that the applicant has a serious relationship with a partner. I accept that he has a child by that person. I do not accept otherwise that the applicant has strong ties to the Australian community.
24. I must consider the best interests of minor children.[32] There is one child presently in state care, B, the biological child of the applicant and his partner. The child would benefit both from any financial support the applicant could provide and from the development, in due course, of a proper parental relationship. I bear in mind, however, that B is in state care and that there is simply a potential for the applicant to resume care of her in the longer term. She is presently four years of age. I bear in mind also that if the applicant were to resume a drug habit, it would be better for the father-daughter relationship to end. That qualifies the weight I give to this consideration.
25. I find, moreover, that the applicant is presently able to fulfil that role (since he is the holder of a bridging visa permitting him to live in the community) and I also accept that it is unlikely the applicant will be removed in the near future from Australia. Nevertheless, I cannot exclude the possibility of the applicant being removed from Australia at some future point since he has only been granted a Bridging (Pending Removal) visa; and, as I have noted, there are now financial inducements that Australia can offer third countries to take a person in the applicant's situation.
26. Accordingly, I do think that in B's case, it would be in her interests of the applicant continue to live in Australia without the sudden deportation of her father should a third country be found to take him.
27. I must weigh the expectations of the Australian community as given in paragraph 8.5 of the Direction. Paragraph 8.5(1) provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where non-citizens have engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community 'as a norm' ‒ albeit not as an inflexible rule ‒ expects the Government not to allow them to remain in Australia.
28. That consideration applies here. I do accept that the applicant would remain in Australia even if I affirmed the decision under review but the applicant in that event would remain on a 'pending removal' visa which does envisage his eventual removal from Australia even if the timing of that removal is not certain, and, indeed, even if the very fact of removal is not guaranteed. Clearly, paragraph 8.5 applies to the applicant. It is a consideration that applies whether or not there is a measurable risk of the applicant inflicting physical harm on the Australian community;[33] and I note that I must not enter into an independent assessment of the community expectations in any particular case but, rather, apply the considerations as they appear in 8.5.[34]
29. I must consider any 'other' considerations under section 9 (where there is a non-exhaustive list of three such considerations given). The respondent put to me that the decision under review ought to be affirmed because the applicant would not be entitled to anything other than a SHEV in any event. It followed that there was no great difference between leaving the applicant on his bridging visa (which would continue if I affirmed the decision under review) and setting aside the decision under review (which could only lead to a SHEV).
30. I called for written submissions on this question, and they were provided to me in two sets in due course. I have decided that I should proceed on the basis that if I set aside the decision under review, the assessment of the applicant's application for a SHEV visa will resume, and, if he is found to qualify for this visa, his application will be treated as one for a 'resolution of status' ('ROS') visa. A ROS visa is not a short-term visa. I shall set out my reasons for this conclusion at the end so as not to distract at this point from the principal points I wish to make in my assessment and weighing of the considerations under the Direction.
31. Clearly, the loss of an opportunity to receive a ROS visa is an important matter for the applicant and weighs in his favour.
32. Even if I am wrong in that conclusion, however, and the applicant would only be eligible for a SHEV, my overall conclusion would not alter, and I would still set aside the decision under review.[35] I say this because I do not accept the respondent's submission that there is no substantial difference between a SHEV and a Bridging (Removal Pending) visa. In my view, there is a substantial difference between holding a bridging visa which might end at any time and result in severe disruption to a person's life, and holding a SHEV, which while temporary, is renewable if an applicant continues to meet eligibility criteria, and offers therefore a more secure basis for continued residence in Australia.
33. I note further that the SHEV does offer a route to permanent residence if certain so-called 'pathway requirements' are met. These involve work or study in regional Western Australia according to the respondent.[36] There is nothing before me that suggests that the applicant intends at the present time to live and work in regional Western Australia; but it would be an option open to him if he genuinely wishes to obtain permanent residency in Australia.

1. I now turn to weighing the considerations I have identified. The weighing of these considerations is not easy, and it is important not to simplify the process as all considerations must be carefully weighed against the exact circumstances of the case at hand. I bear in mind immediately that the offending of which the applicant has been convicted is serious. As I have made clear, the applicant had been detained in immigration detention before and not deterred by that experience. The offence of dangerous driving was serious. There was a clear risk to the safety of members of the community. I acknowledge the pre-eminence the Direction gives to the protection of the Australian community. As a general matter, this consideration should weigh more than other considerations. The applicant's criminal record is a significant one. Much of the offending has been driven by the misuse of drugs, which is itself a highly anti-social act. I accept that many of the applicant's offences received fines only, but nevertheless there is a consistent pattern of defiance. Moreover, there was an earlier occasion, in 2019, when the applicant drove recklessly and was in fact sentenced on that date to six months' imprisonment. He later offended in a serious way near the school.
2. Nevertheless, it is important to bear in mind the interests of B, which constitute a primary consideration. I am concerned that her interests in meeting and being cared for by her father are important. I accept also that if the applicant remains in Australia, he is more likely to be able to provide financially for her.
3. I accept that the applicant will remain in Australia on a Bridging (Pending Removal) visa for at least some time and into the foreseeable future. This means that he will be able to look after his daughter. But in the medium to longer term, the departure of the applicant would harm the interests of his daughter; but I accept also that his departure would eliminate any risk of the applicant reoffending in the community at that point.
4. The applicant himself has an interest, which I believe I ought to weigh, in remaining in Australia on a more secure basis rather than being subject to removal at any time, which is his present position. The grant of the bridging visa indicates that as at the date of granting it, the Government was of the view that there was no reasonable prospect in the foreseeable future of the applicant being removed to a third country. It is impossible to predict whether and this situation will change and, if so, within what time frame. It remains in my opinion a significant burden for a person to lead an unsettled life in the community.
5. On the other hand, if the applicant stays away from drugs, he should not pose a threat to the Australian community or at least he will pose a significantly reduced risk. At the present time, he is the community. My decision to affirm the decision under review would not change that situation although it would allow for the elimination of risk in due course on the deportation of the applicant.

1. All in all, and notwithstanding the very strong emphasis the Direction places on community safety as a priority consideration, I have decided that the preferable decision on the evidence before me is to set aside the decision under review and to remit the matter to the respondent for further consideration with an order that the applicant's application for a SHEV not be refused under s 501(1) of the Act. The formal decision of the Tribunal will be to this effect.

CONSEQUENCES FOR THE APPLICANT'S SHEV APPLICATION OF SETTING ASIDE THE DECISION UNDER REVIEW

1. I indicated earlier[37] that I would explain at the end of these reasons my view of the regulatory framework so far as it bears upon the applicant's application for a SHEV. That is not strictly necessary given my earlier conclusion[38] but I shall do so. I have appended to these reasons the statutory and regulatory provisions to which I make reference below.
2. It is accepted that the applicant applied for a SHEV in 2017. The applicant has been found to be owed protection obligations, but his application was rejected on character grounds in January 2023 under s 501(1) of the Act. On my setting aside the decision under review and remitting the matter for further consideration, the applicant's 2017 application for a SHEV will still be, as at the date of my decision, open and undetermined.

1. Regulation 2.08G(1) of the Migration Regulations 1994 (Cth) provides that a valid application for a SHEV made before what is called the 'transition day' (which is defined to be 14 February 2023) is taken not to be, and never to have been, a valid application for a SHEV and is taken to be and always to have been a valid application for a ROS visa made by the visa-applicant. This deeming provision is given effect to immediately after reg 2.08G 'starts to apply in relation to the application'. To whom it applies, and when it starts to apply, are determined by reference to a table appearing in the regulation.

1. Item 3 of the Table refers to the situation of a visa-applicant who has never held a SHEV and who is a person in relation to whom the Minister had not made a decision in relation to the application under s 65 of the Act. That is the case here as the applicant's application was rejected under s 501 of the Act, not s 65.

1. The day on which the regulation applies to the applicant's SHEV application is then specified to be the day on which the Minister makes a record that the Minister is satisfied that the applicant satisfies the criteria for a SHEV. At that very moment, the application for the SHEV is deemed to be one for a ROS visa; and the Minister was clearly not intended to proceed to grant a SHEV.

1. This provision on a plain reading was intended, it seems to me, to address the situation of undetermined SHEV applications as at 14 February 2023. The applicant's application for a SHEV will fall into this category if I set aside the decision under review and remit the matter to the respondent for reconsideration. So, on a plain reading of the regulation, if I set aside the decision under review and remit the matter to the respondent, the applicant's application will be taken to be one for a ROS visa as soon as the delegate records that the applicant satisfies the conditions for the grant of a SHEV.

1. As I understand the respondent's submission, however, the respondent maintains that the opening words to regulation 2.08G(1) are important and point to a different result. These words read: 'For the purposes of section 45AA of the Act...'. The respondent contends that these words imply that the regulation was not intended to apply in circumstances where s.45AA of the Act is not expressed to apply. The respondent does not refer to any relevant case authority on point, and I assume there is none.

Situation in which conversion regulation can be made

(a) a person has made a valid application (a pre‑conversion application) for a visa (a pre‑conversion visa) of a particular class; and

(b) the pre‑conversion visa has not been granted to the person, whether or not a migration decision has been made in relation to the pre‑conversion application; and

(c) since the application was made, one or more of the following events has occurred:

(i) the requirements for making a valid application for that class of visa change;

(ii) the criteria for the grant of that class of visa change;

(d) had the application been made after the event (or events) occurred, because of that event (or those events):

(ii) that class of visa could not have been granted to the person.

1. The respondent maintains that s 45AA does not apply in this case, and that reg 2.08G and Item 3 in the Table do not therefore apply. The respondent accepts that paragraphs (a), (b) and (c) of s 45AA(1) apply. In relation to paragraph (d), however, the respondent submits that whilst the criteria for a SHEV have changed with effect from 14 February 2023, despite that change, a SHEV could still have been granted to the applicant after the transition day (on the assumption that the applicant's application for the SHEV had been made after the transition day). It follows in the respondent's submission that the applicant's application for the SHEV is not brought within Item 3 of the table since reg 2.08G, when read down by reference to s 45AA(1), does not apply.

1. The principal difficulty I have with this approach is that it requires the scope of 2.08G to be read down so as to exclude applications for a SHEV that were outstanding on the transition day from the purview of the regulation. I am required on this reading to depart from its terms even though the applicant's case falls within what I might call the spirit of the regulation as well as its plain terms.

1. I note first that s 45AA(1) addresses a somewhat different situation; namely, one where an event occurs in relation to a class of visa (involving its amendment or abolition) that would make the application that has been made for that visa invalid or would result in the application being refused if the same application had been made after the event in question. SHEVs continued to exist, however, as a class of visa after the transition day. I note that the Explanatory Statement issued by the respondent in respect of the Migration Amendment (Transitioning TPV/SHEV Holders to Resolution of Status Visas) Regulations 2023 (Cth) refers to a number of sections in the Act that support the making of these Regulations, of which s 45AA is merely one.[39]

1. I have found it instructive to look at a case uncomplicated by the refusal of a visa under s.501 of the Act to see where the respondent's submission, if it were accepted, might lead. I shall take the case of a person who had applied for a SHEV before 14 February 2023, but whose application had not been determined as of that date, but who met the prescribed eligibility criteria. That, one would have thought, is a typical case where regulation 2.08G was intended to apply. The regulation was intended, after all, to give certainty to those who had made SHEV applications as of 14 February 2023 by converting their application for a SHEV to an application for a ROS visa once they were found to have qualified for the SHEV.

1. But if the respondent is correct, the regulation should not be read to apply where paragraph (d) of s 45AA(1) is not satisfied. For present purposes, paragraph (d) of s 45AA(1) requires an assumption that the application in question for the SHEV was made after 14 February 2023, which was the day on which the criteria for the grant of a SHEV changed. On that day, a new criterion of eligibility was inserted. It is Item 1403(3)(ba) of Schedule 1 of the Migration Regulations, 1994 (Cth). It appears in the appendix to these reasons, and I

(ba) Either:

(i) the applicant first entered Australia on or after the TPV/SHEV transition day; or

(ii) the applicant has not made a valid application for a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa that, as at the TPV/SHEV transition day:

(A) had not been finally determined; or

(B) was the subject of judicial review proceedings that had not been completed.

1. This criterion only applies, I note, to applications made on or after the 14 February 2023.[40]

1. The first of the two alternative eligibility criteria (namely, that the visa-applicant entered Australia on or after 14 February 2023) is not satisfied and is irrelevant. The second of the two criteria is satisfied, however, on the assumption required by paragraph (d) of s 45AA(1) (viz, that one assumes the SHEV application in question had been made after 14 February 2023 and not before). On this assumption, a visa-applicant would not have made a visa application that, as at 14 February 2023, had not been finally determined or was the subject of incomplete judicial review proceedings. On the assumption required to be made by s.45AA(1)(d), a visa-applicant with an outstanding application for a SHEV as at 14 February 2023 would not have made the application before that date (because paragraph (d) requires the assumption that the SHEV application was made after 14 February 2023).

1. Following the respondent's argument to its logical conclusion, I believe it would follow that paragraph (d) of s.45AA(1) would not be satisfied in respect of SHEV applicants who had a yet-to-be-determined SHEV application as at 14 February 2023. On an assumption that their application was not made when it was in fact made, but was made after that day, those applications would still be valid SHEV applications. On the respondent's argument, regulation 2.08G and Item 3 of the table would be found not to apply to this category of applicant.

1. That is an unusual consequence. I do not think it could have been intended, and I do not believe I should read reg 2.08G down to have this effect because it would deprive the regulation of work that I believe it was intended to do. I do not think I should discern from the words '[f]or the purposes of s 45AA' appearing at the outset of reg 2.08G an intention that the conditions specified in s 45AA(1) for the application for the s.45AA must be satisfied before regulation 2.08G and item 3 in the table are applied. I believe I should read regulation 2.08G and Item 3 in the Table as having been intended to apply to all existing applications for SHEVs as at the transition day that are not determined as at that day under s 65 of the Act and where the applicant satisfies the applicable conditions for the grant of a SHEV. I have decided that it is preferable to give reg 2.08G this plain and ample reading, and not to exclude its application when the circumstances of s.45AA(1) are not all satisfied. I acknowledge the drafting is somewhat convoluted, and it is certainly complex; but I think that is the preferable construction.

1. Finally, I would note that the respondent's submissions in this regard are not in my view consistent with submissions that have been made to me on another occasion by the respondent, where it was accepted that the effect of a Tribunal decision setting aside the decision to refuse a SHEV would lead to the applicant becoming eligible to be considered for a ROS visa. That is a matter I draw to the respondent's attention.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for the decision herein of Senior Member Manetta.

...................[SGND]................................................

APPENDIX: RELEVANT STATUTORY AND REGULATORY PROVISIONS

1. Section 45AA of the Migration Act 1958 (Cth)

45AA Application for one visa taken to be an application for a different visa

Situation in which conversion regulation can be made

(a) a person has made a valid application (a pre‑conversion application) for a visa (a pre‑conversion visa) of a particular class; and

(b) the pre‑conversion visa has not been granted to the person, whether or not a migration decision has been made in relation to the pre‑conversion application; and

(c) since the application was made, one or more of the following events has occurred:

(i) the requirements for making a valid application for that class of visa change;

(ii) the criteria for the grant of that class of visa change;

(d) had the application been made after the event (or events) occurred, because of that event (or those events):

(ii) that class of visa could not have been granted to the person.

(2) To avoid doubt, under subsection (1) this section may apply in relation to:

(a) classes of visas, including protection visas and any other classes of visas provided for by this Act or the regulations; and

(b) classes of applicants, including applicants having a particular status; and

(c) applicants for a visa who are taken to have applied for the visa by the operation of this Act or the regulations.

Example: If a non‑citizen applies for a visa, and then, before the application is decided, gives birth to a child, in some circumstances the child is taken, by the operation of the regulations, to have applied for a visa of the same class at the time the child is born (see regulation 2.08).

(3) For the purposes of this Act, a regulation (a conversion regulation) may provide that, despite anything else in this Act, the pre‑conversion application for the pre‑conversion visa:

(a) is taken not to be, and never to have been, a valid application for the pre‑conversion visa; and

(b) is taken to be, and always to have been, a valid application (a converted application) for a visa of a different class (specified by the conversion regulation) made by the applicant for the pre‑conversion visa.

Note: This section may apply in relation to a pre‑conversion application made before the commencement of the section (see the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014).

For example, a conversion regulation (made after the commencement of this section) could have the effect that a pre‑conversion application for a particular type of visa made on 1 August 2014 (before that commencement):

(a) is taken not to have been made on 1 August 2014 (or ever); and

(b) is taken to be, and always to have been, a converted application for another type of visa made on 1 August 2014.

(4) Without limiting subsection (3), a conversion regulation may:

(a) prescribe a class or classes of pre‑conversion visas; and

(b) prescribe a class of applicants for pre‑conversion visas; and

(c) prescribe a time (the conversion time) when the regulation is to start to apply in relation to a pre‑conversion application, including different conversion times depending on the occurrence of different events.

(5) If an amount has been paid as the first instalment of the visa application charge for a pre‑conversion application, then, at and after the conversion time in relation to the application:

(a) that payment is taken not to have been paid as the first instalment of the visa application charge for the pre‑conversion application; and

(b) that payment is taken to be payment of the first instalment of the visa application charge for the converted application, even if the first instalment of the visa application charge that would otherwise be payable for the converted application is greater than the actual amount paid for the first instalment of the visa application charge for the pre‑conversion application; and

(c) in a case in which the first instalment of the visa application charge payable for the converted application is less than the actual amount paid for the first instalment of the visa application charge for the pre‑conversion application, no refund is payable in respect of the difference only for that reason.

Note: For the visa application charge, see sections 45A, 45B and 45C.

(6) For the purposes of this Act, if, immediately before the conversion time for a pre‑conversion application, a person held a bridging visa because the pre‑conversion application had not been finally determined, then, at and after the conversion time, the bridging visa has effect as if it had been granted because of the converted application.

(7) For the purposes of this Act, if, immediately before the conversion time for a pre‑conversion application, a person had made an application for a bridging visa because of the pre‑conversion application, but the bridging visa application had not been finally determined, then, at and after the conversion time:

(a) the bridging visa application is taken to have been applied for because of the converted application; and

(b) the bridging visa (if granted) has effect as if it were granted because of the converted application.

Note: This Act and the regulations would apply to a bridging visa to which subsection (6) or (7) applies, and to when the bridging visa would cease to have effect, in the same way as this Act and the regulations would apply in relation to any bridging visa.

For example, such a bridging visa would generally cease to be in effect under section 82 if and when the substantive visa is granted because of the converted application.

Conversion regulation may affect accrued rights etc.

(a) subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply in relation to the effect of a conversion regulation (including a conversion regulation enacted by the Parliament); and

(b) subsection 7(2) of the Acts Interpretation Act 1901, including that subsection as applied by section 13 of the Legislation Act 2003, does not apply in relation to the enactment of this section or the making of a conversion regulation (including a conversion regulation enacted by the Parliament).

1. Regulation 2.08G of the Migration Regulations 1994 (Cth)

2.08G Certain applications for Subclass 785 (Temporary Protection) visas and Subclass 790 (Safe Haven Enterprise) visas taken to be applications for Resolution of Status (Class CD) visas

(1) For the purposes of section 45AA of the Act, despite anything else in the Act but subject to subregulations (3) and (4) of this regulation, a valid application (a pre‑conversion application) for a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa made before the TPV/SHEV transition day by an applicant described in column 1 of an item of the following table is, immediately after this regulation starts to apply in relation to the application under column 2 of the item:

(a) taken not to be, and never to have been, a valid application for a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa, except for the purposes of section 197C of the Act; and

(b) taken to be, and always to have been, a valid application for a Resolution of Status (Class CD) visa, made by the applicant.

Note 1: As a result, the Minister is required to make a decision on the pre‑conversion application as if it were a valid application for a Resolution of Status (Class CD) visa.

Note 2: TPV/SHEV transition day is defined in regulation 1.03.

An applicant in relation to whom both of the following apply:

(a) the applicant held a Subclass 785 (Temporary Protection) visa, or a Subclass 790 (Safe Haven Enterprise) visa, on or before the TPV/SHEV transition day;

(b) before the TPV/SHEV transition day, the Minister had not made a decision in relation to the pre‑conversion application under section 65 of the Act

An applicant in relation to whom both of the following apply:

(a) the applicant held a Subclass 785 (Temporary Protection) visa, or a Subclass 790 (Safe Haven Enterprise) visa, on or before the TPV/SHEV transition day;

(b) before the TPV/SHEV transition day, the Minister had made a decision in relation to the pre‑conversion application to refuse to grant the visa under section 65 of the Act

Immediately after a review/court event occurs in relation to the pre‑conversion application if that event occurs on or after the TPV/SHEV transition day

An applicant in relation to whom both of the following apply:

(a) the applicant does not hold, and has not ever held, a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa;

(c) before the TPV/SHEV transition day, the Minister had not made a decision in relation to the pre‑conversion application under section 65 of the Act

When the Minister makes a record, on or after the TPV/SHEV transition day, that the Minister is satisfied:

(a) if the pre‑conversion application is for a Subclass 785 (Temporary Protection) visa - that the applicant satisfies the criteria for the grant of the Subclass 785 (Temporary Protection) visa; or

(b) if the pre‑conversion application is for a Subclass 790 (Safe Haven Enterprise) visa - that the applicant satisfies the criteria for the grant of the Subclass 790 (Safe Haven Enterprise) visa

An applicant in relation to whom both of the following apply:

(a) the applicant does not hold, and has not ever held, a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa;

(b) before the TPV/SHEV transition day, the Minister had not made a decision in relation to the pre‑conversion application under section 65 of the Act

When the Minister makes a record, on or after the TPV/SHEV transition day, that the Minister is satisfied:

(a) that the applicant is a member of the same family unit as another person; and

(b) that the other person satisfies the criterion mentioned in paragraph 36(2)(a) or (aa) of the Act; and

(i) if the pre‑conversion application is for a Subclass 785 (Temporary Protection) visa - the applicant would satisfy the criteria for the grant of the Subclass 785 (Temporary Protection) visa if it were assumed that the other person held a visa of that kind; or

(ii) if the pre‑conversion application is for a Subclass 790 (Safe Haven Enterprise) visa - the applicant would satisfy the criteria for the grant of the Subclass 790 (Safe Haven Enterprise) visa if it were assumed that the other person held a visa of that kind

An applicant in relation to whom all of the following apply:

(a) the applicant does not hold, and has not ever held, a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa;

(c) before the TPV/SHEV transition day, the Minister had made a decision in relation to the pre‑conversion application to refuse to grant the visa under section 65 of the Act;

(d) on or after the TPV/SHEV transition day, a review/court event occurs in relation to the pre‑conversion application

When the Minister makes a record, after the occurrence of the event mentioned in paragraph (d) of column 1, that the Minister is satisfied:

(a) if the pre‑conversion application is for a Subclass 785 (Temporary Protection) visa - that the applicant satisfies the criteria for the grant of the Subclass 785 (Temporary Protection) visa; or

(b) if the pre‑conversion application is for a Subclass 790 (Safe Haven Enterprise) visa - that the applicant satisfies the criteria for the grant of the Subclass 790 (Safe Haven Enterprise) visa

An applicant in relation to whom all of the following apply:

(a) the applicant does not hold, and has not ever held, a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa;

(b) before the TPV/SHEV transition day, the Minister had made a decision in relation to the pre‑conversion application to refuse to grant the visa under section 65 of the Act;

(c) on or after the TPV/SHEV transition day, a review/court event occurs in relation to the pre‑conversion application

When the Minister makes a record, after the review/court event occurs in relation to the pre‑conversion application, that the Minister is satisfied:

(a) that the applicant is a member of the same family unit as another person; and

(b) that the other person satisfies the criterion mentioned in paragraph 36(2)(a) or (aa) of the Act; and

(i) if the pre‑conversion application is for a Subclass 785 (Temporary Protection) visa - the applicant would satisfy the criteria for the grant of the Subclass 785 (Temporary Protection) visa if it were assumed that the other person held a visa of that kind; or

(ii) if the pre‑conversion application is for a Subclass 790 (Safe Haven Enterprise) visa - the applicant would satisfy the criteria for the grant of the Subclass 790 (Safe Haven Enterprise) visa if it were assumed that the other person held a visa of that kind

Note: For column 2 of items 3 to 5, if the Minister is not satisfied that the applicant satisfies the criteria for the grant of the visa, this regulation never starts to apply.

(1A) For the purposes of items 2, 4 and 5 of the table in subregulation (1), a review/court event occurs in relation to a pre‑conversion application if one of the following occurs:

(a) the Immigration Assessment Authority remits a decision in relation to the pre‑conversion application in accordance with subsection 473CC(2) of the Act as in force when the matter is remitted;

(b) the Administrative Appeals Tribunal remits a matter in relation to the pre‑conversion application in accordance with paragraph 415(2)(c) of the Act as in force when the matter is remitted;

(c) the Administrative Appeals Tribunal remits a matter in relation to the pre‑conversion application in accordance with paragraph 43(1)(c) of the Administrative Appeals Tribunal Act 1975 as in force when the matter is remitted;

(ca) the ART remits a matter in relation to the pre‑conversion application in accordance with subsection 349(2) of the Act;

(cb) the ART remits a matter in relation to the pre‑conversion application in accordance with paragraph 105(c) of the ART Act;

(d) a court orders the Minister to reconsider the pre‑conversion application in accordance with the law;

(e) a court declares or concludes (with or without formal declaration) that a decision of the Minister in relation to the pre‑conversion application is invalid, void or of no effect;

(f) a court quashes a decision of the Minister in relation to the pre‑conversion application.

(2) To avoid doubt, for the purposes of subregulation (1), the Minister is taken not to have made a decision in relation to a pre‑conversion visa application under section 65 of the Act if, before the TPV/SHEV transition day:

(a) the Minister had made a decision in relation to the pre‑conversion application under section 65 of the Act; and

(b) one of the following events occurred after the Minister made that decision:

(i) the Immigration Assessment Authority remitted a decision in relation to the pre‑conversion application in accordance with subsection 473CC(2) of the Act as in force when the matter was remitted;

(ii) the Administrative Appeals Tribunal remitted a matter in relation to the pre‑conversion application in accordance with paragraph 415(2)(c) of the Act as in force when the matter was remitted;

(iii) the Administrative Appeals Tribunal remitted a matter in relation to the pre‑conversion application in accordance with paragraph 43(1)(c) of the Administrative Appeals Tribunal Act 1975 as in force when the matter was remitted;

(iv) a court ordered the Minister to reconsider the pre‑conversion application in accordance with the law;

(v) a court declared or concluded (with or without formal declaration) that a decision of the Minister in relation to the pre‑conversion application was invalid, void or of no effect;

(vi) a court quashed a decision of the Minister in relation to the pre‑conversion application; and

(c) after the occurrence of the event mentioned in paragraph (b), the Minister had not made another decision in relation to the pre‑conversion application.

(3) This regulation does not apply to a pre‑conversion application if there are proceedings, in relation to the application, in which:

(a) judgment is reserved by a court as at immediately before the TPV/SHEV transition day; or

(b) judgment has been delivered by a court before the TPV/SHEV transition day.

(4) This regulation does not affect rights or liabilities arising between parties to proceedings, in relation to the application, in which:

(a) judgment is reserved by a court as at immediately before the TPV/SHEV transition day; or

(b) judgment has been delivered by a court before the TPV/SHEV transition day.

1. New eligibility criterion for grant of a SHEV as of the transition day: Item

1403(3)(ba) of Schedule 1 to the Migration Regulations, 1994 (Cth)

(i) the applicant first entered Australia on or after the TPV/SHEV transition day; or

(ii) the applicant has not made a valid application for a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa that, as at the TPV/SHEV transition day:

(B) was the subject of judicial review proceedings that had not been completed.

[1] The delegate's reasons were before me: see Hearing Book ('HB'), 21ff. The delegate's conclusion on the jurisdictional threshold question appears at HB, 21 [7].

[2] Minister for Immigration, Citizenship and Multicultural Affairs (Cth) Direction no. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA dated 28 February 2019_._

[5] This paragraph is one I routinely use in my decisions to explain the general decision-making approach of the Tribunal.

[6] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51]. This decision concerned the Tribunal's predecessor, the Administrative Appeals Tribunal, but the same principles apply to the Tribunal's exercise of jurisdiction.

[7] Minister for Immigration, Citizenship and Multicultural Affairs (Cth) Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA dated 7 June 2024_._

[8] Pursuant to s 105(c)(ii) of the Administrative Review Tribunal Act, 2024 (Cth).

[12] That is, the one before the grant of the most recent Bridging (Removal Pending) visa in November 2023.

[17] Although the delegate considered an earlier iteration of the Direction, there are many similarities between the two.

[19] HB, 67. The applicant was homeless at the time.

[21] See Paragraph 8.1.1(1)(c) of the Direction.

[22] See Paragraph 8.1.1(1)(e) of the Direction.

[23] See Paragraph 8.1.1(1)(f) of the Direction.

[24] See Paragraph 8.1.1(1)(g) of the Direction.

[25] See Paragraph 8.1.1(1)(h) of the Direction.

[26] Cf Paragraph 8.1.2(2) of the Direction.

[28] Following the High Court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 280 CLR 137; (2023) 97 ALJR 1005. In this decision, the Court ruled that there was no legal authority to continue the detention of a person once the point had been reached where there was no real prospect in the reasonably foreseeable future of resettling a detainee in another country.

[29] The responsible Minister has publicly announced the entering into an arrangement with Nauru for example.

[33] Paragraph 8.5(3) of the Direction.

[34] Paragraph 8.5(4) of the Direction.

[35] I explain the weighing process below.

[36] See respondent's submission dated 19 November 2024, 6-7, [14]-[16].

[39] These are listed as s 504(1), 46, 31, and 45AA.

[40] See Migration Amendment (Transitioning TPV/SHEV Holders to Resolution of Status Visas) Regulations 2023, Schedule 1, Part 2, cl. 18 inserting Part 115 Item 11501 in Schedule 13.