1800321 (Migration)

[2018] AATA 229

1800321 (Migration) [2018] AATA 229 (15 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1800321

MEMBER:Justine Clarke

DATE:15 January 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 15 January 2018 at 12:32pm

CATCHWORDS

Migration – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – Immigration Department errors – Incorrect date of Bridging visa lodgement noted by Department – Applicant met visa criteria at time of application – No review application made – Visa criteria not met at time of decision – Applicant did not receive notification of decision – Criminal record – Stayed in the community as an unlawful citizen – Ministerial intervention sought

LEGISLATION

Migration Act 1958, ss 5, 66, 73, 189 , 351, 494B, 501, 501CA

Migration Regulations 1994, rr 2.16 Schedule 2, cls 050.212, 050.221

CASES
Chenv MIMIA [2001] FCA 285

Lin v MIMIA [2001] FCA 283

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] January 2018 to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).

2. The [applicant] is [an age] year old national of Vietnam.

3. From the evidence before the Tribunal—specifically, from the Department’s file—it appears that, [in] September 2017, the applicant applied for the visa in association with his application for a Protection visa that was lodged the same day. For example, the Tribunal notes that the Department’s letter notifying of the refusal of the Bridging E visa application states that the visa ‘had been lodged [in September 2017] using form 866’.

4. Accordingly, it appears that the primary decision incorrectly states that the date of application for the Bridging E visa is [in] January 2018. The Tribunal considers that incorrectly noting the date of application in the primary decision likely caused the delegate to find that the applicant did not meet the time of application criteria. Strangely and unexplainably, the delegate also found that, at the time of decision, the applicant continued to satisfy the time of application criteria.   

5. At the time of application [in] September 2017, Class WE contained two subclasses: Subclasses 050 and 051. 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 (the Regulations). The primary criteria include cl.050.212. Clause 050.212 is a primary criterion to be met at the time of application. Clause 050.212(1) requires the applicant to meet the requirements of subclause (2), (3), (3A), (4), (4AA), (4AAA), (4AB), (5), (5A), (5B), (6), (6AA), (6A), (6B), (7), (8) or (9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.

6. The primary decision was made on the basis that, at the time of application (which as has been noted, was incorrectly stated to be [in] January 2018), the applicant did not meet the cl.050.212.

7. [In] January 2018, the applicant applied to the Tribunal for review of the primary decision.

8. [In] January 2018, the applicant appeared before the Tribunal—via video link from [a Detention Centre]—to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A] (the applicant’s spouse). Her [children] also attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by his registered migration agent.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether, at the time of application, the applicant met cl.050.212(1). The Tribunal considers that it is appropriate to also make findings about the time of decision criteria in this case.  

    Applicant’s migration background

11. At the hearing, the Tribunal informed the applicant that it had reviewed his movement records which evidence his entries into and out of Australia as well as details of visas granted. The Tribunal also informed him that it had reviewed material on the Department’s file pertaining to his migration background.

12. The Tribunal explained to the applicant that, from this information, it had compiled a chronology of his migration background and that it would detail this information and then ask him whether this was correct. The Tribunal asked a couple of specific questions about matters which it was unclear. The applicant agreed that the following is an accurate reflection of his visa and migration background. 

13. [In] August 2012, the applicant was granted a [temporary] visa. He then entered Australia [in] September 2012. That visa ceased [in] October 2012 but the applicant remained in Australia without a valid visa.

14. The Tribunal informed the applicant that it was unclear what had happened next.

15. The applicant said that he met the woman who is now his wife, they fell in love and married. He said that he had wanted to notify the Department. The Tribunal asked him whether he had done so. He said that he had in relation to his marriage and that he had been permitted to marry [Ms A]. This evidence suggests that the applicant voluntarily sought to regularise his migration status. The Tribunal makes no finding in this regard.

16. [In] March 2016, the applicant was granted a Bridging E visa (the first Bridging E visa) on departure grounds.

17. [In] March 2016, the applicant applied for a Partner [visa].

18. [Later in] March 2016, the applicant’s first Bridging E visa ceased and he was granted a further Bridging E visa (the second Bridging E visa). This second visa was granted in association with the applicant’s Partner visa application.

19. [In] April 2016, the applicant was arrested and charged with criminal charges. (The Department’s file states that this was for [charges deleted] but the Tribunal did not discuss the specific charges with the applicant).

20. [In] June 2016, the applicant’s application for a Partner visa was refused because he did not meet the criteria.

21. On 6 July 2016, the applicant sought review of the delegate’s refusal of the Partner visa application at the Tribunal.

22. [In] November 2016, the applicant was convicted of the charges and sentenced to [imprisonment] with a non-parole period of [number] months.  

23. On 25 April 2017, the Tribunal (differently constituted) affirmed the delegate’s decision not to grant the applicant a Partner visa: AAT reference[number].

24. [In] May 2017, the Bridging E visa which was associated with the applicant’s Partner visa application was cancelled pursuant to s.501(3A) (on character grounds). The applicant became an unlawful non-citizen.

25. [Later in] May 2017, the applicant requested Ministerial Intervention pursuant to s.351 of the Act.

26. [A few days later], the applicant was advised of the outcome of the request for Ministerial Intervention. It was considered to be inappropriate for the Minister to consider the request.

27. {Also in] May 2017, the applicant applied, pursuant to s.501CA(4) of the Act, for the revocation of the Bridging E visa that had been cancelled.

28. [In] July 2017, the cancellation of the Bridging E visa was revoked. Accordingly, the second Bridging E visa—which was associated with the applicant’s Partner visa—was reinstated. However, this was of no practical effect as the second Bridging E visa had ceased ‘naturally’ [in] May 2017.

29. [In] September 2017, the applicant applied for a Protection visa. By lodging the Form, [the] applicant also applied for another Bridging E visa (the third Bridging E visa) on this date. This is the application for a Bridging E visa which is the subject of this review.

30. However, [later in] September 2017 the Department notified the applicant in writing that his application for the third Bridging E visa was an invalid application and accordingly that this application was not accepted and would not be processed. This was incorrect advice which the Department later sought to rectify.

31. [Subsequently, in] September 2017, the applicant’s application for a Protection visa was refused. The primary decision the subject of the current review states, in this respect, that ‘no review of a decision to refuse a substantive visa [was] ever made’. The Tribunal asked the applicant whether he had sought merits review at the Tribunal of that decision. The Tribunal noted that the primary decision states:

    [The applicant] stated in interview that his lawyer had lodged an application on his behalf. [The applicant] stated he will contact his lawyer for advice as client advised, no applications before the Department.

32. At the hearing, the applicant maintained his claim that he had instructed his ‘solicitor’ to lodge an application for review. He said words to the effect that he had asked his ‘solicitor’ to look into the matter and that was why he was appearing at the Tribunal.

33. The written submissions filed with the Tribunal state that no application for review was lodged in respect of the refusal of the Protection visa application.

34. Notwithstanding, in light of the applicant’s consistent claim, the Tribunal asked the representative if she could clarify whether such a review application had been made. She informed the Tribunal that she was not sufficiently familiar with this matter—only having been given responsibility the preceding day—to answer at that time and that she would need to check the file and report back to the Tribunal. The Tribunal noted its tight timeframe for finalising its review of a Bridging E visa refusal and requested that she give the information to the Tribunal the following day.

35. On 12 January 2018, the representative on the record wrote to the Tribunal in response to the query in the following terms. 

    Upon review of the file that we hold as the migration agent representatives, as well as receipt of instructions from the Applicant regarding his Protection visa application, we submit to the Presiding Member that no application for review regarding this refusal was ever lodged by the Applicant or our firm because the notification of refusal and decision record for this application was never received. The Applicant did not receive any notification from the Department that his Protection visa application had been refused, and we also did not receive any such notice from the Department. We note that we and the Applicant had only discovered the refusal once we had received notice of the refusal of the Applicant’s Bridging Visa E application.

    We reiterate that neither the Applicant nor our firm as his representatives received any notification of refusal or decision record in relation to the Applicant’s Protection Visa application, and as such, no application for review was able to be lodged by the Applicant. The Applicant instructs that, as he deeply desires to be able to remain in Australia with his family, he would most certainly have lodged an application for review had he been adequately notified by the Department of the refusal.

36. Section 66(4) of the Act states that ‘[f]ailure to give notification of a decision does not affect the validity of the decision’—being the primary decision. However, if the notice does not comply with the legislative requirements, it may affect the validity of the notification and time periods for review do not commence until there has been valid notification of the primary decision. Section 66 of the Act outlines requirements for the notification of a decision in respect of a visa application. Defective notification may result from non-compliance with the requirements as to the content of the notice or from non-compliance with the requirements as to the method of notification.

37. On 12 January 2018, the Tribunal sought further information from the Department about the notification of its decision in respect of the refusal of the applicant’s Protection visa application. The Department sent relevant documents and information to the Tribunal later that day.

38. The Tribunal has reviewed a copy of the letter dated [in] September 2017 which was addressed to the applicant care of [Prison 1] as well as the accompanying decision record. Having reviewed this material, the Tribunal is satisfied that the content of the notice met the requirements outlined in s.66(2) of the Act.

39. With respect to the method of notification, s.66(1) of the Act and r.2.16(3) of the Regulations require the Minister to notify the applicant of a decision to refuse a visa by one of the methods specified in s.494B of the Act. The Department’s letter to the applicant dated [in] September 2017 states that the method of transmission was by post. Posting the document is a method specifically permitted by s.494B(4). The document must be dispatched within 3 working days (in the place of dispatch) of the date of the document (s.494B(4)(a)) and by prepaid post or by other prepaid means (s.494B(4)(b)).

40. Section 494B(4)(c) outlines the requirements as to the address to which the document must have been dispatched. As the applicant is not a minor, s.494B(4)(c)(iii) is not relevant. The relevant provisions require that the document have been dispatched to the last address for service provided to the Minister by the recipient for the purposes of receiving documents (s.494B(4)(c)(i)) or the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents (s.494B(4)(c)(ii)).

41. As noted, the letter was sent to the applicant care of [Prison 1]. Information on the Department’s file states that the letter was returned to sender on 7 November 2017. The Department’s file also contains information that the Department considers that the applicant was correctly notified as the address provided had been checked against the relevant records.

42. The Tribunal accepts the representative’s claim that the applicant did not receive the Department’s notification. From the material before the Tribunal, it appears that it may have been received by [Prison 1] after the applicant’s release. Notwithstanding, from the information before the Tribunal, the Tribunal is satisfied that the applicant was correctly notified of the primary decision as required by the relevant provisions of the Act. This means that the time period in which the applicant could have sought merits review of the decision to refuse him a Protection visa has expired.

43. [In] October 2017, the applicant was released from [Prison 1] and was detained under s.189(1) of the Act and transferred to [an] Immigration Detention Centre.

44. Subsequently, the Department took action to address its identified error in not having made a decision in respect of the third application for a Bridging E visa. As noted, [in] January 2018, a delegate of the Minister made a decision to refuse to grant the applicant a Bridging E visa. This is the decision which is the subject of this review.

    The grounds for seeking the visa: cl.050.212

45. As noted above, at the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)–(9). Further, the applicant must continue to satisfy this criterion at the time of decision: cl.050.221. The Tribunal explained this to the applicant at the hearing.

46. The applicant does not claim to meet any of the criteria in cl.050.212. The Tribunal notes that the written submissions concede that ‘the Applicant does not meet the criteria set out in the Regulations for grant of the visa applied for’. The Tribunal asked the applicant whether he disagreed with this statement and he said that he did not.

47. For the reasons below, the Tribunal finds that, at the time of application [in] September 2017, the applicant met cl.050.212(3)(a) but that, at the time of this decision, he does not meet cl.050.212 and accordingly does not meet cl.050.221.

    Substantive visa application: cl.050.212(3)

48. 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.

49. ‘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 application being made: s.5(9) of the Act.

50. As noted above, the applicant applied for a Protection visa [in] September 2017. The Tribunal finds that, on that date, when the applicant also applied for the Bridging E visa the subject of this review, he had 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 the application for the Protection visa had not been finally determined on that day. Accordingly, at the time of application [in] September 2017, the applicant met cl.050.212(3)(a).

51. As has been noted, the information before the Tribunal is that the applicant’s application for a Protection visa has been finally determined and he was refused the visa sought.

52. Further, the primary decision states that the applicant has no applications or ongoing matters before the Department. At the hearing, the applicant agreed with the accuracy of this statement of his position. Accordingly, at the time of this decision, he does not meet cl.050.212(3)(a).

53. The Tribunal is also aware that, due to the applicant’s immigration history and the evidence that he had been provided with a Very Important Notice when he was detained but that he did not seek to apply for another onshore visa application within the permitted time frame, he is unable to apply for another substantive visa of the kind that can be granted to him if he is in Australia. Accordingly, at the time of this decision, he does not meet cl.050.212(3)(b).

54. While, at the time of application, the applicant met cl.050.212(3), there is no information before the Tribunal that, at the time of this decision, the applicant’s circumstances are such that he continues to meet cl.050.212(3).  

55. At the time of this decision, the applicant does not meet cl.050.212(3).

    Acceptable arrangements to depart Australia: cl.050.212(2)

56. Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The Department’s Procedures Advice Manual 3 (PAM3), whilst not binding on the Tribunal, nevertheless provides some guidance: Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]).

57. When the Tribunal asked the applicant why he was applying for a Bridging E visa, he replied that it was because he wanted to remain in Australia. He explained that he had a wife and children here and that he wanted to remain in Australia to look after them.

58. At the hearing, the Tribunal explained to the applicant that the written submissions state that he wishes to leave the detention centre and remain in Australia in order to spend time with his family as he decides his next course of action. The Tribunal asked him whether he agreed with the accuracy of this statement and he replied affirmatively. 

59. The Tribunal also asked the applicant if he had made any arrangements to depart Australia. He replied that he had asked his solicitor to help him. He said that if he was not successful and had to return to Vietnam that he would ask for his organs to be donated to the Australian community because he viewed separation from his wife and children to be akin to a death sentence.

1. In view of the evidence before the it, the Tribunal is not satisfied that at the time of this decision the applicant is making or is the subject of acceptable arrangements to depart Australia. Therefore, at the time of this decision, the applicant does not meet cl.050.212(2).

   Consideration of the alternative criteria in cl.050.212(3A), (4), (4AAA), (4AA), (4AB), (4A), (5), (5A), (5B), (6AA), (6A), (6B), (7), (8) and (9)

2. There is no information before the Tribunal that, at the time of this decision, the applicant’s circumstances are such to meet any one of the alternative criteria set out in cl.050.212(3A), (4), (4AAA), (4AA), (4AB), (4A), (5), (5A), (5B), (6AA), (6A), (6B), (7), (8) and (9). The Tribunal finds that the applicant does not meet any one of these criteria.

   CONCLUSION

3. At the time of application, the applicant met cl.050.212(3).

4. However, at the time of this decision, the applicant does not meet cl.050.212(1) because he does not satisfy any of subclauses (2), (3), (3A), (4), (4AAA), (4AA), (4AB), (4A), (5), (5A), (5B), (6AA), (6A), (6B), (7), (8) or (9).

5. Accordingly, the applicant does not continue to satisfy the criteria set out in cl.050.212, as required by cl.050.221.

6. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

   REFERRAL TO THE MINISTER

7. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

8. The written submissions stated, ‘while we understand and acknowledge the fact that the Presiding Member must make a decision to affirm the Department’s decision based on the information and facts in this matter, we request that the Presiding Member make a referral or recommendation for ministerial intervention on this file’.

9. Two main claims were made in support of the submission that the matter be referred to the Minister for his consideration.

10. The first argument related to the fact that the applicant ‘has in the past demonstrated that he has sufficiently compelling reason to remain in Australia lawfully’. It was pointed out that, previously, the applicant had successfully sought waiver of Condition 8503 on his visa (which had prohibited him from applying for another visa while in Australia). The submissions continued:

    We submit that the fact that the Applicant was able to waive this condition based on his circumstances indicates that the Applicant has always had, and continues to have, compelling reasons to remain in Australia. We further note that the Applicant had also successfully sought—on similar compelling grounds—revocation of a cancellation of his previous bridging visa.   

    Ultimately, we submit that these circumstances and events represent clearly that the Applicant does exhibit compelling and compassionate grounds to remain in Australia—the same grounds that would and ought to be invoked in a request for ministerial intervention.

11. The second argument was related to the fact that the applicant has ‘a young child under the age of 18, whose interests are paramount to the exercise of the discretion’. The submissions continued:

    We respectfully submit that there can be little doubt that if he is separated from his child for an extended period, this will have a serious impact upon her development and growth …

    We further submit that, since the Applicant’s incarceration, their family has had to adjust to new living arrangements and circumstances, including depending [upon] financial support from a combination of minor resources and the Applicant’s wife being the sole carer and provider for their [child]. The Applicant and his family instruct that these arrangements are not sustainable in the long-term with her child continuing to grow and require more care and expenses every day.

12. At the hearing, the applicant gave oral evidence in support of his request for ministerial consideration and intervention in his case. He told the Tribunal that he would like the Minister to consider his case because he would like to remain in Australia with his wife and children so that he could look after them. He stated that it will be very difficult for his wife to look after the children if he is not in Australia. He gave his commitment that if he were permitted to stay in Australia that he would not repeat his past behaviour but would instead work hard like other citizens and would pay his taxes to the Government.

13. The applicant’s wife [also] gave oral evidence at the hearing in support of the request for referral to the Minister. She said that she and her [children] were all Australian citizens. [Sentence deleted]. She said that she wanted her husband to be with her and to help her look after the children. She also told the Tribunal that she had not appreciated that there were such serious consequences stemming from the refusal of the Partner visa application. 

14. In deciding whether to refer the matter to the Minister for consideration under s.351, the Tribunal has had regard to the President’s Direction Conducting Migration and Refugee Reviews, especially at paragraphs 16.1–16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J) available in the Procedures Advice Manual 3 (‘the Minister’s Guidelines’).

    Factors in favour of referral

15. The Minister’s Guidelines state that the Minister may consider exercising his discretion in cases that exhibit one or more ‘unique or exceptional circumstances’.  The Guidelines then identify factors that may be relevant, individually or cumulatively, in assessing whether a case involves unique or exceptional circumstances.  They include ‘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 an Australian permanent resident’. In this case, [all other] members of the family are Australian citizens.  There are [number] children under the age of seven. 

16. The Minister’s Guidelines also refer to ‘relevant information’, two aspects of which may be taken together—one that there are circumstances that may bring Australia’s obligations as a party to International Covenant on the Civil and Political Rights (ICCPR) into consideration, particularly issues of family unity; and another that there are circumstances that may bring Australia’s obligations as a party to Convention on the Rights of the Child (CROC) into consideration, including the best interests of the child.

17. For instance, Article 23.1 of the ICCPR provides: ‘The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State’. 

18. Article 3 of CROC provides: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’.

19. However, the Minister’s Guidelines expressly state that circumstances that may bring Australia’s obligations as a party to CROC into consideration ‘can be balanced against other primary considerations’ and that circumstances that may bring Australia’s obligations as a party to ICCPR into consideration ‘can be balanced against other rights and interests including the integrity of Australia’s migration programme’.

    Factors against referral

20. The Minister’s Guidelines list a number of ‘Ministerial intervention principles’. One of these principles is that, if a person has a visa pathway available to them, including an offshore pathway, it is generally not appropriate for the Minister to intervene. The Tribunal is mindful that if the applicant were deported he could, subject to there being potential conditions or restrictions, apply offshore for a Partner visa.

21. Another one of the Ministerial intervention principles is that the Minister will review a case referred to him unfavourably if the person has been an unlawful non-citizen. The Tribunal is mindful that the applicant has a poor history of compliance with Australian migration laws.

22. Further, the Minister’s Guidelines also list a number of matters where it has been determined that it is inappropriate for the Minister to consider the request. Where the person’s review Tribunal decision was in relation to the refusal of a Bridging E visa is one such matter. The Tribunal notes that this is the case in the present case.

23. Finally, as noted earlier, the applicant has already sought ministerial consideration once before and that request was unsuccessful given it was considered to be inappropriate for the Minister to consider the request. The Minister’s Guidelines expressly state that the Minister does not wish to consider repeat requests. There are limited circumstances in which a repeat request may be referred to the Minister and the Tribunal does not consider that the current circumstances come within that exception.

    Conclusion

24. The Tribunal is not satisfied that the circumstances of the case are unique or exceptional such that they fall within the guidelines for referral to the Minister.

25. Examining relevant factors individually and cumulatively, the Tribunal considers that this is not a case where it would be appropriate to make a referral to the Minister. Therefore the Tribunal has decided not to refer the matter for possible ministerial intervention under s.351 of the Act.

26. However, the Tribunal notes that it remains open to the applicant to make a relevant application for such consideration through the Department directly. 

    DECISION

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

    Justine Clarke
    Member