1809235 (Migration)

[2020] AATA 3060

1809235 (Migration) [2020] AATA 3060 (11 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1809235

MEMBER:Linda Holub

DATE:11 June 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

·cl.050.211 of Schedule 2 to the Regulations.

Statement made on 11 June 2020 at 12:04pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – visa status – unlawful non-citizen – ‘not an eligible non-citizen’ requirement – protection visa application finally determined – legal processes exhausted – reasonably practicable removal from Australia – Bangladeshi border remains open – decision under review remitted          

LEGISLATION
Migration Act 1958, ss 65, 195
Migration Regulations 1994, r 2.20; Schedule 2, cls 050.211, 050.221

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 on 26 March 2018 to refuse to grant the visa applicant a Bridging E (Class WE) Subclass 050 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 20 March 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant meets the requirements in sub-clause 050.211(2).

3. The delegate also found that the applicant was eligible for consideration for the grant of a Subclass 051 (Bridging (Protection) Visa Applicant) visa. However, the delegate did not make a finding in relation to clause 051.211 (2). He repeated the previous finding that he was not satisfied that the applicant meets the requirements in clause 050.211(2). This may have been an oversight by the delegate. The decision record explains that there two subclasses of visa in the class the applicant applied for and specifically refers to the requirements of both clauses.

1. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

1. The applicant appeared before the Tribunal by telephone on 7 May 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bangla and English languages.

2. The invitation sent to the applicant explained that in order to help slow the spread of COVID-19 (coronavirus), the AAT has not been holding face to face (in person) hearings since Monday, 23 March 2020 and is currently closed to all visitors until further notice. As in-person hearings at not being held arrangements were made for him to appear by telephone. The invitation explained that if he had any concerns about his ability to participate in a telephone hearing, he should inform the Tribunal as soon as possible. No concerns were raised either before or during the hearing nor was there any indication that the applicant was having any difficulty understanding questions put to him.

1. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

2. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the criteria for a Bridging E subclass visa.

Evidence provided to the Department

10) In his application dated 20 March 2018 the applicant stated that he had an outstanding High Court case and that he suffers from chronic diseases. He stated that he was unable to undertake the tests that had been recommended by his doctor because he did not have work rights and was therefore unable to work and could not afford the cost of the tests. The applicant provided a letter to the Department further outlining his need to have access to Medicare. He did not provide any evidence of his claims. He did provide a copy of a letter from the High Court dated 13 March 2018 stated that his application was listed for determination by the High Court of Australia [in] March 2018.

Evidence provided to the Tribunal

11) No written evidence was provided to the Tribunal during the course of the review.

12) The Tribunal asked the applicant if he currently held a visa of any type. He responded that the Department had not granted him any visa recently. The applicant stated that he does not know if he is in Australia legal. The Tribunal explained to him that generally speaking if a person does not hold a valid visa that are here illegally.

13) The applicant stated he came to Australia illegally [in] March 2010. He stated he came by boat and that he entered Australia [at location]. He was in detention from March 2013 until May 2013 and since that time has not been in detention.

14) When asked what visas he had held since his arrival in Australia, the applicant stated he had held a Bridging visa E which expired in either October or November 2016. Since that time, he had not held a visa of any type.

15) The applicant applied for the visa on 20 March 2018. Referring to the letter he had provided from the High Court which indicated his case was listed for determination [in] March 2018. The Tribunal asked the applicant why he applied for the Bridging visa on that particular day after having been in Australia illegally prior to that for over a year and a half year. He responded that after getting advice from others he was told by the Department that he could not be granted a bridging visa after that he received the High decision.

16) The applicant stated that the High Court case was in relation to his Protection visa application. The applicant stated that he applied for protection after arriving in Australia on the grounds that he feared for the safety of his life in Bangladesh. His application was refused by the Department. He sought review by a differently constituted Tribunal and subsequently appealed to the Federal court and through to the High Court. He stated that the High Court did not find in his favour.

17) The Tribunal asked the applicant why he did you not leave Australia after the High Court did not find in his favour. He responded that he had no place to go to. He stated that he can only commit suicide. The Tribunal explained to the applicant that having taken his case through to the High Court, he had exhausted the legal processes available to him to obtain a Protection visa. The applicant responded that he was aware of that but that he has no place to go. The Tribunal also explained to him that having exhausted the legal processes available to him, it does not look favourably when applicants remain in Australia illegally.

18) The applicant stated that he had a very difficult time in Bangladesh and that he intends to live in Australia. The Tribunal once again referred to the fact that by his own evidence he has been in Australia without a valid visa since either October or November 2016. The applicant stated he called the Department and was told they will let him know, when his visa will be issued.

19) The Tribunal explained to the applicant it must consider whether his removal from Australia is reasonably practicable at this time. The Tribunal asked him if there are any reasons why his removal from Australia would not be reasonably practicable at this time. Because of some difficulties the applicant had in understanding the question the Tribunal put it to him again by re-phrasing it. The applicant responded that he came to Australia because he feared for his safety. He stated that remained in Australia but has continued to live a hard life. He stated he had problems in Bangladesh. He stated that he left Bangladesh because of the safety concerns and came to Australia even though he did not have a visa to enter Australia.

20) The Tribunal acknowledged that he had safety concerns and that he had an opportunity to put those concerns through his Protection visa application. His claims had already been assessed and were not accepted. He responded that he understands they have gone through that, but he does not accept the result and he cannot return to Bangladesh.

21) On three further occasions, the Tribunal asked the applicant if there were any other concerns, he wanted the Tribunal to consider that are not related to his Protection claims. He repeated his previous evidence that he cannot go back to Bangladesh because of the situation there even though he might have to accept death here. He responded that in Bangladesh people who supported BNP are treated in different way. He stated that he has seen this on the news and on YouTube. The applicant stated that the political situation in Bangladesh is very disturbing and referred to pressure being applied to his family. The Tribunal reiterated that the matters he was raising were related to his protection claims and that his application for protection had been refused and subsequent appeals had not been successful. The Tribunal explained it was not its role to re-consider his protection claims.

22) The Tribunal put it to the applicant that information available to it confirms that the borders of Bangladesh remain open to its citizens. He confirmed that this was his understanding also.

23) At the conclusion of the hearing, the applicant apologised if he has said anything wrong. He asked about access to Centrelink payments and Medicare and whether the Department had made a fair decision. The Tribunal explained that its role is to make a new decision rather than to critique the Department’s decision. In relation to access to benefits the Tribunal explained that entitlement related to the type of visa he held. As he did not hold a valid visa of any type he was not entitled to certain benefits.

Findings - cl.050.211

24) Clause 050.211 is met if, at the time of application:

(1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

(2)the applicant was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17).

25) The applicant must continue to satisfy this criteria at the time of decision: cl.050.221.

26) . Regulation 2.20 of the Regulations relevantly provides as follows:

(7) This sub-regulation applies to a non-citizen:

(a) who:

(i) was refused immigration clearance; or

(ii) bypassed immigration clearance and came to the notice of Immigration as an unlawful non-citizen within 45 days of entering Australia; and

(b) if:

(i) the non-citizen made a protection visa application that is not finally
determined; or
(ii) the non-citizen applied for judicial review of a decision to refuse a
protection visa; or
(iii) the Minister has applied for judicial review of a decision in relation to the
non-citizen's protection visa application; and

(c) who has not turned 18; and

(d) in respect of whom a child welfare authority of a State or Territory has certified that release from detention is in the best interests of the non-citizen;

(e) in respect of whom the Minister is satisfied that:

(i) arrangements have been made between the non-citizen and an Australian
citizen, Australian permanent resident or eligible New Zealand citizen for the
care and welfare of the non-citizen; and
(ii) those arrangements are in the best interests of the non-citizen; and
(iii) the grant of a visa to the non-citizen would not prejudice the rights and
interests of any person who has, or may reasonably be expected to have,
custody or guardianship of, or access to, the non-citizen.

(8) This sub-regulation applies to a non-citizen:

(a) who:

(i) was refused immigration clearance; or
(ii) bypassed immigration clearance and came to the notice of Immigration
as an unlawful non-citizen within 45 days of entering Australia; and

(b) if:

(i) the non-citizen made a protection visa application that is not finally
determined; or
(ii) the non-citizen applied for judicial review of a decision to refuse a
protection visa; or
(iii) the Minister has applied for judicial review of a decision in relation to the non-citizen's protection visa application; and

(c) who has turned 75; and

(d) in respect of whom the Minister is satisfied that adequate arrangements have

been made for his or her support in the community.

(9) This sub-regulation applies to a non-citizen:

(a) who:

(i) was refused immigration clearance; or
(ii) bypassed immigration clearance and came to the notice of Immigration
as an unlawful non-citizen within 45 days of entering Australia; and

(b) if:

(i) the non-citizen made a protection visa application that is not finally
determined; or
(ii) the non-citizen applied for judicial review of a decision to refuse a
protection visa; or
(iii) the Minister has applied for judicial review of a decision in relation to the
non-citizen's protection visa application; and

(c) who has a special need (based on health or previous experience of torture or

trauma) in respect of which a medical specialist appointed by Immigration has

certified that the non-citizen cannot properly be cared for in a detention environment;

and

(d) in respect of whom the Minister is satisfied that adequate arrangements have

been made for his or her support in the community.

(10) This sub-regulation applies to a non-citizen:

(a) who:

(i) was refused immigration clearance; or
(ii) bypassed immigration clearance and came to the notice of Immigration
as an unlawful non-citizen within 45 days of entering Australia; and

(b) if:

(i) the non-citizen made a protection visa application that is not finally
determined; or
(ii) the non-citizen applied for judicial review of a decision to refuse a
protection visa; or
(iii) the Minister has applied for judicial review of a decision in relation to the
non-citizen's substantive visa application; and

(c) who is the spouse or de facto partner of an Australian citizen, Australian

permanent resident or eligible New Zealand citizen; and

(d) in relation to whom the Minister is satisfied that the non-citizen's relationship with

that Australian citizen, Australian permanent resident or eligible New Zealand citizen

is genuine and continuing; and

(e) who is nominated by that Australian citizen, Australian permanent resident or

eligible New Zealand citizen.

(11) This sub-regulation applies to a non-citizen who is a member of the family unit of a noncitizen to whom sub-regulation (10) applies.

(17) This sub-regulation applies to a non-citizen if:

(a) the non-citizen is an unlawful non-citizen; and

(b) section 195A of the Act is not available to the Minister in relation to the grant of a

visa to the non-citizen;

(Minister may grant detainee visa (whether or not on application). Persons to whom section applies:

(1)  This section applies to a person who is in detention under section 189)

and

(c) the Minister is satisfied that the non-citizen's removal from Australia is not

reasonably practicable at that time.

27) The Tribunal finds that at the time of application and at the time of its decision, based on the evidence before it, the applicant was not the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa. Accordingly, the applicant meets cl.050.211(1).

28) The Tribunal has considered whether at the time of its application the applicant was in any of the classes of eligible non-citizen prescribed in r2.20 (7), (8), (9), (10), (11) or (17). The Tribunal finds that the applicant did not meet:

·subregulation (7)(c) – as he turned 18;

·subregulation (8)(c) – as he had not turned 75;

·subregulation (9)(c) –there was no evidence before the Tribunal that the applicant had a special need;

·subregulation (10)(c) – there was no evidence before the Tribunal that the applicant was the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen;

·subregulation (11) - there was no evidence before the Tribunal that the applicant was a member of the family unit of a non-citizen to whom subregulation (10) applies;

·subregulation (17)(c) – there was no evidence before the Tribunal regarding the applicant’s removal from Australia as to whether it was reasonably practicable at the time or not.

29) As a consequence, the Tribunal is satisfied that at the time of application the applicant was not in any of the classes of eligible non-citizen prescribed in reg 2.20 (7), (8), (9), (10), (11) and (17) therefore the applicant was not an eligible non-citizen at the time of application and clause 050.211 was met.

30) For these reasons, the applicant satisfies the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

DECISION

31) The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

·cl.050.211 of Schedule 2 to the Regulations.

Linda Holub
Member