1802328 (Migration)

[2018] AATA 493

1802328 (Migration) [2018] AATA 493 (7 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1802328

MEMBER:Denise Connolly

DATE:7 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 07 February 2018 at 2:38pm

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Requirement for application for a substantive visa to be made – Application for substantive visa not made – Whether applicant is making acceptable arrangements to depart Australia – Genuine intention to depart Australia – No arrangements to depart made - Multiple reasons for remaining in Australia – Judicial review of application ongoing – Application for judicial review not made before application for Bridging visa E

LEGISLATION
Migration Act 1958, ss 5(1), 73
Migration Regulations 1994, Schedule 2, cl 050.212, Schedule 8, Condition 8503

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 501K 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 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 applied for the visa [in] January 2018. 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 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.212.

3. The decision to refuse to grant the visa was made [in] January 2018 on the basis that the applicant did not meet any of the alternative grounds for the grant of the visa set out in cl.050.212.

4. The applicant appeared before the Tribunal on 6 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

5. The applicant was represented in relation to the review by his registered migration [agent].

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The grounds for seeking the visa - cl.050.212

7. 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.

8. At the time of making the visa application the applicant’s then representative, [Ms A], provided a written statement in which she explained that the applicant was seeking the Bridging visa E on the basis that he intended to apply for a substantive visa of a specified kind. In the alternative she indicated that the application was made on the basis that the applicant was making, or was the subject of, acceptable arrangements to depart Australia. She explained that [in] January 2018 an application was lodged to waive the ‘no further stay’ condition (8503) imposed on the applicant’s visitor visa. That condition prevents him from making certain further visa applications. [Ms A] explained that the waiver application was made so the applicant could lodge a Partner visa application. She explained that in the event that the applicant was unable to lodge a Partner visa onshore he intends to depart Australia and lodge an offshore application at the earliest opportunity.

9. [Ms A] submitted that the applicant is in a relationship with [Ms B] who arrived in Australia as the holder of a Partner visa, sponsored by her previous [partner]. She was then granted permanent residence. On arriving in Australia [her partner] became abusive and controlling and the relationship ended. In February 2017 the applicant and [Ms B] had an Islamic marriage officiated by [an Imam].

10. [Ms A] also explained that the applicant most recently arrived in Australia as the holder of a visitor visa [in] June 2013. He then applied for a protection visa which was refused. That decision was affirmed by the AAT in December 2016. It was asserted however that due to negligence by his previous migration agent the applicant was not informed that the decision had been affirmed and that the applicant was not aware that he soon after became unlawful.

11. [Ms A] indicated that [in] January 2018 the applicant applied for waiver of condition 8503 (no further stay). The Tribunal notes that in the delegate’s decision record, provided to the Tribunal by the applicant, the delegate indicates that the Department records that the application to waive condition 8503 was refused [in] January 2017 (although this may be a typographical error and should read 2018), and as such the applicant is unable to make a valid Partner visa application in Australia.

12. With respect to the applicant’s arrangements to leave Australia, [Ms A] asserted that the applicant intends to depart Australia voluntarily in order to lodge an offshore Partner visa application in the event the Bridging visa E cannot be granted for the purposes of lodging a substantive visa application. She claimed that the applicant will purchase tickets and make appropriate bookings to leave Australia at the earliest opportunity. However she advised that the applicant does not hold a valid travel document and his last held passport expired [in] 2016. He will therefore be required to obtain a travel document from the consulate prior to departure. She advised that in the event that he departs Australia he intends to lodge an application for a Partner visa at the earliest opportunity. She indicated that the applicant and his partner are prepared to pay a security if required. She also advised that the applicant and his partner intend to undergo IVF treatment given [Ms B]’s fertility issues following her previous abusive relationship.

13. The applicant’s visa application confirms that his passport expired [in] 2016. It indicates that the applicant intends to apply for a Partner visa or alternatively will make acceptable arrangements to depart Australia.

14. The applicant also provided submissions prepared by [Ms A] seeking waiver of condition 8503, dated [in] January 2018. The submission describes the background to the applicant’s relationship with [Ms B], the abuse she suffered from her previous partner and the difficulties she has had getting pregnant. The submission asserts that the applicant needs to remain in Australia to care for his wife who previously lived in an abusive relationship, who works in a high stress [role] and who suffers from depression. It asserts that [Ms B] relies on the applicant practically, financially and emotionally and that, in the event the applicant is forced to depart Australia, [Ms B]’s safety will be put in jeopardy. The submission also explains that [Ms B] is unable to conceive without the assistance of IVF treatment and that the parties strongly wish to have a child to build a family together. They expect that the process will take a long time and is likely to be unsuccessful in the first few attempts. [Ms A] also refers to the threat of harm that the couple faces should they return to Lebanon as the situation in Lebanon is precarious, partly because of the danger and instability in Lebanon and because of its proximity to Syria. There are also references to Hezbollah and corruption.

15. As indicated above the delegate advised that the applicant’s application to seek waiver of condition 8503 was refused. Hence the applicant is unable to make a valid Partner visa application onshore. The delegate also noted that the applicant does not hold a valid passport and that he has not purchased a departure ticket. He recorded that he interviewed the applicant to assess whether he was likely to make acceptable arrangements to depart Australia within a reasonable period should the visa be granted. He recorded that the applicant was unaware that the application to waive condition 8503 had been refused. He recorded that when he asked the applicant whether he intends to depart Australia, the applicant indicated that his lawyer had told him that there is always a way to stay in Australia and that he is not yet prepared to depart. It is recorded that the applicant then discussed his intention to stay in Australia to complete the IVF program with his wife, and that he requested the Bridging visa for 18 months so that he and his wife could for pregnant and have a baby. It is recorded that the applicant stated that his family would then travel to [another country] where he would lodge his Partner visa application. The delegate was not satisfied the applicant was making acceptable arrangements to depart Australia. He gave more weight to the applicant’s statements at the interview than those included in [Ms A]’s written submissions. The delegate formed the view the applicant had no intention to depart Australia in the foreseeable future. He found that the applicant intended to remain in Australia to complete the IVF program, and this diminishes the likelihood that he would make arrangements to depart Australia within a reasonable timeframe should Bridging visa E be granted.

16. Prior to the hearing, the applicant’s current [representative] provided written submissions and various other documents. The Tribunal has taken all of this information into account. In the written submission the representative confirms that the applicant first travelled to Australia in July 2010 on a visitor visa. He left Australia [in] October 2010 and returned [in] April 2013 as the holder of a visitor visa. [In] June 2013 he applied for a protection visa. The delegate refused that visa application and on 8 December 2016 the AAT affirmed the delegate’s decision. The applicant’s Bridging visa A expired [in] January 2017. The representative asserts that the applicant failed to understand the serious effects of his unsuccessful appeal to the AAT. (This was despite the applicant informing the Tribunal that this representative assisted him in the protection visa matter.) He had a family dispute with his siblings and lost their financial and guidance support. The representative claims that the applicant was then left alone (although the applicant indicated to the Tribunal that shortly after the AAT’s decision he moved in with his partner [Ms B] who was working). In about May 2017 he approached [Ms A] to discuss his circumstances and to seek assistance to regularise his immigration status. The applicant engaged [Ms A] from May 2017 until he was detained in January 2018. It is indicated that the applicant lodged an application to waive the “no further stay” condition imposed on his visitor visa to allow him to lodge a Partner visa application. This application was refused [in] January 2018. The representative informed the Tribunal that [in] February 2018 the applicant filed an application for judicial review with the Federal Circuit Court. The representative asserted that the applicant now meets cl.050.212 as he has applied for judicial review of the decision to refuse to grant a protection visa, on the grounds of jurisdictional error. The representative provided evidence that the first direction hearing is scheduled for 14 November 2018. The representative then made submissions as to why the Tribunal should be satisfied that the applicant will comply with any conditions imposed on a Bridging visa E, as he now has the financial support of his siblings with whom he has reconciled, and also the support of his partner, so he will not need to work. If he is released from detention he will reside with his partner with whom he was living prior to his detention.

17. The representative informed the Tribunal that the applicant had been involved in a family dispute which led to him being charged. He indicated that the matter was currently being contested in the Magistrates Court. Otherwise the applicant does not have any other criminal record. It is asserted that no adverse assumption should be made against the applicant because he is contesting the charges and he and [Ms B] have reconciled. It is asserted there is no risk that he will engage in criminal conduct if released from detention as the applicant would not jeopardise his release into the community. He asserted that following the applicant’s charge in relation family violence the applicant is now aware of the serious consequences that follow such actions and he is deterred from engaging or contemplating any criminal behaviour. The representative then discussed the Department’s policy on assessing whether an applicant will comply with visa conditions. He also advised that the applicant has already forfeited a $15,000 bond paid for his visitor visa, when he applied for a protection visa. His brother however is willing to provide another security bond in the amount of $15,000 should one be requested. The representative advised that the applicant now wishes to remain in Australia and build a family with his partner.

18. The other documents provided include statutory declarations from the applicant’s brother and partner, information pertaining to his partner’s income and evidence that he signed a costs agreement with [Ms A’s firm]. There is also evidence confirming that [in] February 2018 he made an application for judicial review by the Federal Circuit Court.

19. At the hearing the Tribunal discussed with the applicant the requirements of the law, in particular cl.050.212, and his reasons for applying for the Bridging visa E. The applicant acknowledged that at the time of the Bridging visa E application his intention was either to make a substantive visa application (a Partner visa application) and in the event that that was unsuccessful he would make arrangements to depart Australia. He indicated that he understood he could not make a valid Partner visa application because condition 8503 has not been waived. He indicated however that his intention is now to pursue judicial review of the AAT’s decision (of December 2016) to affirm the delegate’s decision to refuse his protection visa application. The Tribunal indicated that it may not be satisfied the application for judicial review meets the time of application requirement in cl.050.212 as it was made after the Bridging visa E application.

20. The Tribunal asked the applicant whether he is still claiming that he is making, or is the subject of, acceptable arrangements to depart Australia. He indicated that he wishes to remain in Australia for the judicial review process, however if that is unsuccessful he would depart Australia if the Australian government required him to do so. The Tribunal suggested that this evidence indicates that his intention is conditional and he is not in fact making, or the subject of, acceptable arrangements to depart Australia in the foreseeable future. The applicant acknowledged that he does not hold a current passport. He also acknowledged that he has not purchased a ticket to depart Australia. He indicated that he does not intend to leave Australia before November 2018 when the directions hearing will be held in the Federal Circuit Court. The Tribunal asked why the applicant did not seek judicial review of the AAT decision in relation to his protection visa application refusal over a year ago, when the AAT decision was made. He indicated he had nobody to help him and he had no money.  He indicated [name deleted] was his migration agent in the protection visa review but he said he did not speak directly with him; his brother dealt with [his first representative].

21. The applicant confirmed that he was located by the Department when he appeared in the Magistrates Court because of a “small disagreement” between himself and his wife. When asked about the circumstances leading to his appearance in the Magistrates Court, he indicated that his wife was upset after an argument with her family and she then went to the police. The Tribunal asked why the police became involved in a “small disagreement”. The applicant could not explain this. He did not know who called the police. He indicated that he had been charged, although he was not sure of the particulars of the charges, but he was found to be not guilty.

22. The Tribunal asked the applicant if he had any other evidence to give as to why it should be satisfied that cl.050.212 is met. He indicated that he and his wife love each other. She visits him three times a week. While he has worked in the past, at [a business] as [an occupation], he will not work in future.

23. The Tribunal invited the applicant’s representative to make submissions. He indicated that he anticipated the Tribunal would raise the issue of whether the time of application requirement is met given that the applicant is now seeking the Bridging visa E on the basis that he has applied for judicial review, and this was done after the Bridging visa E application. He believes that so long as a ground for the grant of the visa is met at time of decision cl.050.212 is satisfied. He acknowledged that at the time of application the applicant intended to pursue the visa on other grounds; either a partner visa application, or making arrangements to depart Australia. He acknowledged that at time of decision the applicant is seeking the visa based on a different ground but he does not see this as an obstacle to cl.050.212 being met.

    Assessment of the evidence

    Substantive visa application

24. 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.

25. ‘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.

26. As recorded by the delegate, and not disputed by the applicant or his representative, the application to waive the “no further stay” condition (8503) imposed on his visitor visa was unsuccessful. That condition prevents the applicant from making a further visa application, such as a Partner visa application. As the applicant has already lodged a protection visa application, now the subject of judicial review, there are no other valid substantive visa applications open to the applicant. Accordingly the Tribunal is not satisfied that 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. He therefore does not meet cl.050.212(3).

    Acceptable arrangements to depart Australia

27. 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]).

28. Since making this visa application, the applicant has sought judicial review of a decision by the AAT (differently constituted) of a decision made in December 2016 to affirm the delegate’s decision to refuse a protection visa application. He has provided evidence to the Tribunal that he lodged his application for judicial review with the Federal Circuit Court [in] February 2018, after making the visa application the subject of his review. He has indicated to the Tribunal that he now wishes to remain in Australia until such time as the Court has determined the outcome of his judicial review application. He has provided evidence that the directions hearing is not scheduled until November 2018. The Tribunal also notes that the applicant does not currently hold a valid passport. Nor has he purchased a ticket to depart Australia. While the applicant has indicated he would be willing to depart Australia after his judicial review has been finalised, he has indicated his strong desire to remain in Australia to pursue IVF treatment with his partner [Ms B]. The Tribunal is not satisfied the applicant currently has a genuine intention to depart Australia because his willingness to depart is conditional on the outcome of his judicial review application. Overall the Tribunal is of the view that the applicant does not have a genuine intention to depart Australia in the foreseeable future or in a reasonable period. On the basis of his evidence that he wants to remain in Australia at least until his judicial review is finalised (and the directions hearing is not listed until November 2018), and also taking into account that he does not have a current passport or an air ticket to depart Australia, the Tribunal is not satisfied the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

1. For these reasons, the Tribunal is not satisfied that at the time of application the applicant was making, or was the subject of, acceptable arrangements to depart Australia. Therefore the applicant does not meet cl.050.212(2).

   Judicial review

2. Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.

3. On the basis of the material provided by the applicant, the Tribunal is satisfied the applicant made an application to the Federal Circuit Court [in] February 2018 for judicial review. The Tribunal notes this application was made after the applicant made the Bridging visa E application and the application for review. The Tribunal is not satisfied that the applicant had applied for judicial review of the decision to refuse a substantive visa of the type that can be granted while in Australia at the time of application. The applicant’s representative has asserted that so long as a ground in cl.050.212 is met at time of decision, the relevant subclause can be met. The Tribunal has considered this argument but it does not agree. Clause 050.212(1), one of the criteria to be satisfied at time of application, states:

   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).

4. The provision does not indicate that the requirements may be met sometime in the future. The Tribunal also notes that one of the criteria to be satisfied at time of decision is that the applicant continues to satisfy the criteria set out in clauses 050.211 and 050.212: cl.050.221. Accordingly the Tribunal is of the view that cl.050.212 must be met at time of application. As the applicant had not made his application for judicial review at the time of application, and not until after the delegate refused the Bridging visa E application and he sought review, the Tribunal is not satisfied cl.050.212(3A) was met at time of application. Accordingly, the applicant does not meet cl.050.212(3A).

5. There is no evidence to suggest the applicant meets any of the other requirements in cl.050.212(2)-(9). On the basis of these findings the Tribunal is not satisfied the applicant meets the time of application requirement in cl.050.212(1). For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

6. 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

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

   Denise Connolly
   Member