1837633 (Migration)

[2021] AATA 708

1837633 (Migration) [2021] AATA 708 (10 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1837633

MEMBER:James Silva

DATE:10 March 2021

PLACE OF DECISION:  Sydney

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

Statement made on 10 March 2021 at 4:36pm

CATCHWORDS
MIGRATION – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – substantial reasons for travel out of Australia – application for protection visa refused and refusal affirmed – appeal to Federal Circuit Court in progress – plan to visit partner – length of separation because of tribunal and court reviews – mental health – psychologist’s report – minimal evidence of relationship and previous travel – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 020.212

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 B (Class WB) visa under s.73 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 December 2018. Class WB contains one subclass (020) and is for holders of a Bridging visa A or a Bridging visa B who have ‘substantial reasons’ for needing to travel out of Australia while their substantive visa application is being processed or while judicial proceedings are on foot[1]. This is the only Bridging visa which permits a holder to re-enter Australia.

   [1] To satisfy cl.020.212, an applicant must meet certain conditions set out in subclauses (2), (3), (4) or (5), and in each case, satisfy the Minister that the reasons for leaving and re-entering Australia are ‘substantial’: cl. (2)(d), (3)(e), (4)(d) and (5)(f).

3. In the present case, the delegate refused the Bridging visa B without providing clear reasons. However, material on the Department file (namely, an earlier decision relating to the same application) indicates that the applicant failed to meet the requirement that ‘the Minister is satisfied that the applicant’s reasons for [wishing to leave and re-enter Australia during the processing of an ongoing visa application] are substantial’.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicant’s reasons for wishing to leave and re-enter Australia are substantial.

   Evidence before the Tribunal

6. The Department file includes the following:

   §  Completed Bridging visa B application form (Form 1006), dated 13 December 2018, stating that he intends to stay in [Country 1] from December 2018 to January 2019 for business and a holiday.

   §  Supporting documents:

   -   Flight reservations for travel from Sydney to [Country 1], from [December] 2018 to [January] 2019.

   -   A letter from [Ms A], forensic psychologist, dated 11 December 2018.

   §  Decision record of 18 December 2018, stating that the applicant did not satisfy the criteria for the visa grant, for the reasons ‘detailed below’. The Tribunal has been unable to locate any such reasons.

   -   The file also includes a decision record dated 11 December 2018, and notified to the applicant by email on 11 December 2018. This refers to a Bridging visa A application lodged on 3 December 2018, which is not on the Department file or before the Tribunal. Both decision records bear the same application ID number. The decision of 11 December 2018, which the applicant appears to have received (and referred to the following day), briefly states that: ‘the applicant’s reasons may be genuine, however, I am not satisfied that they are substantial for a BVB grant’.

   -   In a letter dated 12 December 2018, the applicant expresses shock at the visa application refusal (i.e. the one notified to him the previous day).

   §  Review application, which clearly indicates that the applicant seeks review of the decision of 18 December 2018, and attaches a copy of that decision. The applicant attached a copy of the flight reservations, [Ms A]’s letter of 11 December 2018 and a partial photocopy of his Lebanese passport.

   §  The Tribunal received several requests for priority processing of the case. These referred to the passage of time since his lodgement of his Bridging visa B application and his intention not to return to Lebanon, but did not elaborate on the reasons for his wishing to travel.

7. The applicant attended a Tribunal hearing on 16 February 2021, conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. He is unrepresented in this matter. The applicant brought to the hearing several recently issued Lebanese passports, and a number of other documents relating to his case. The Tribunal suggested that he submit copies of any relevant documents, with translations where necessary, after the hearing.

8. Following the hearing, the Tribunal received the following additional material:

   §  Letter dated 22 February 2021 from [Ms A]; and

   §  Screenshots from a mobile device showing text messages between the applicant and another person, in Arabic, with a translation.

   Analysis, findings and reasons

9. Clause 020.211 requires that the applicant is a holder of a Bridging visa A or Bridging visa B at the time of application. The applicant meets this requirement, at the time of application and also at the time of decision.

10. Clause 020.212(1) requires that the applicant meets the requirements of subclause (2), (3), (4) or (5) at the time of application, i.e. 13 December 2018. Subclause (3) is relevant to this matter[2]. It states:

    An applicant meets the requirements of this subclause if:

    (a)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

    (b)that application was refused; and

    (c)(i) the applicant, or the Minister, has applied, within statutory time limits, for judicial review of a decision in relation to the applicant’s substantive visa application, and the judicial review proceedings (including proceedings on appeal, if any) have not been completed; [(ii) is not relevant to the applicant’s circumstances];

    (d)the applicant wishes to leave and re-enter Australia during the judicial proceedings; and

    (e)the Minister is satisfied that the applicant's reasons for wishing to do so are substantial.

    [2] The Tribunal notes that the decision under review does not specify which sub-clause applies, although the earlier decision of 11 December 2018 addressed cl.020.212(2), on the basis that the applicant had an application that had not been finally determined, and was still subject to ‘processing’.

11. In the present case, the applicant had at the relevant time an ongoing application to the Federal Circuit Court for review of a Tribunal decision dated 3 July 2018; and he had indicated his wish to leave and re-enter Australia during the judicial proceedings. As noted above, the issue is whether the Tribunal is satisfied that the applicant’s reasons for wishing to leave and re-enter Australia are ‘substantial’: s.020.212(3)(e).

12. The legislation does not define ‘substantial’ reasons for the purpose of the grant of a Bridging visa B. The Tribunal has had regard to the Department guidelines (PAM 3) but notes that it must apply the legislation and its ordinary meaning; and it is not bound by guidelines.

13. The guidelines refer to the ordinary dictionary meaning of ‘substantial’ as "having substance, actually existing, not illusionary - of real importance or value". The policy on ‘substantial reasons to leave and re-enter Australia’ states that it should not be applied inflexibly. It identifies two broad aspects that decision-makers should consider in determining whether the reasons for travel are ‘substantial’, namely (a) whether they are important or significant; and (b) that the proposed travel is genuine, eg. that there is evidence of the proposed travel, and that the circumstances requiring the travel genuinely exist.

14. Department policy provides some non-exhaustive examples of where ‘substantial’ reasons exist. For instance, in relation to ongoing substantive visa applications, this may include ‘obtaining documentation needed to satisfy legal criteria’ or ‘personal travel when the processing or review of the substantive visa application has been protracted’. However, the policy also states that the reasons must not conflict with the reasons for seeking the substantive visa (such as a protection visa applicant wishing to visit the country they are seeking to claim protection from).

15. The applicant stated in his visa application that he wished to visit [Country 1] for business and holiday reasons. [Ms A], in her letter of 11 December 2018, referred to the applicant’s distress at being separated from his partner, and also his wish to visit ‘beloved ones’ over the holiday period.

    Separation from partner

16. The applicant told the Tribunal that he wishes to visit his partner, who lives in [Country 2]. He explained that he identifies as homosexual. The prolonged period of separation from his partner had been stressful, and he eventually wants to sponsor him to Australia. He provided the following details.

    §  The applicant said that his partner lives in [City 1, Country 2]. He provided a telephone number with a [Country 2] area code and offered to give his partner’s residential address.

    §  He claimed to have visited his partner in [Country 2] in 2015, 2016 and 2017, on each occasion from early September to mid-October. The applicant explained that he used to take annual leave from the [workplace] where he works, and his partner has time off during the summer break.

    §  The applicant stated that during his return trips to the Middle East, he used to fly from Australia to [Country 1], and from there to [City 2, Country 2]. He then travelled overland to [City 1].

    §  The applicant said that he is from Lebanon and sought protection in late 2014 on the basis of his homosexuality. The Department refused his application, and the Tribunal has twice affirmed the Department’s decision (i.e. in the first review application, and again after the matter was remitted for reconsideration). The matter is now on judicial review.

    §  The applicant noted the lengthy period of processing his protection visa application and the judicial reviews. He regretted having been unable to provide support for his partner when he underwent [an] operation recently. His partner had moved back to his mother’s for a while. The applicant said that their prolonged separation had created problems in the relationship, and the applicant’s mental health had deteriorated.

    §  He stressed that the sole reason for his past travel, and his future plans, was to visit his partner in [Country 2]. He said that, subject to COVID-19 travel restrictions, he hoped to visit his partner around Christmas 2021. The applicant said that, although he is Christian and his partner Alawite (Muslim), they celebrate Christmas together.

17. The applicant stressed that his family in Lebanon has disowned him due to his sexuality, and he has had no contact with them for seven years. He implied that he therefore has no reason to return to Lebanon, and in fact has not done so on his recent travels to the Middle East.

18. The Tribunal’s focus is on whether there are substantial reasons for the applicant’s wish to depart and re-enter. As noted at hearing, its role is not to finally determine the genuineness of the relationship, although this is obviously a relevant fact in assessing the reasons for the travel. The Tribunal notes the following:

    §  The applicant spoke at hearing emphatically and emotionally about his wish to travel to see his partner.

    §  He showed the Tribunal a screensaver on his mobile telephone, showing the image of the applicant and another man; and he referred to correspondence between the two.

    §  The Tribunal put to the applicant, pursuant to the procedure in s.359AA, that two previous Tribunal members who had assessed his protection claims had found the evidence of the relationship to be weak and inconclusive, and did not accept these claims. It noted that it may also have regard to these comments (alongside the other evidence that he was providing during this review). The applicant opted to provide comments/responses on the spot, orally. He acknowledged that several Tribunal members had found his evidence insufficient; he said that he understood why they had not been satisfied. He stressed, however, that he had sworn on the Bible and was telling the truth. He asked rhetorically why he would fabricate a lie about being gay if it were not true. He added that he had paid a high cost, as his family had disowned him completely.

19. The Tribunal received a post-hearing submission showing six screen shots from a mobile device, with text messages between the applicant and another person. The translated texts, undated, show brief affectionate exchanges, including a reference to ‘my husband’ and to Valentine’s Day (suggesting that at least some of them occurred around mid-February). The Tribunal has received no further explanation or context, and places little weight on these as evidence of a lasting relationship.

20. A letter from [Ms A], dated 22 February 2021, gives some brief information about her treatment of the applicant since May 2018 and his migration history. It echoes the point made in her earlier letter, that the applicant’s separation from his partner for a number of years has taken an emotional toll on him, particularly recently. [Ms A] states that, on the basis of the applicant’s self-reporting, her clinical observation and (unspecified) assessments conducted in accordance with the Diagnostic and Statistical Manual of Mental Disorders, 5^th edition (DSM-5), it ‘is evident’ that he suffers Major Depressive Disorder with features of Severe Anxiety. She wrote that he has been undergoing Cognitive Behavioural Therapy (CBT), noting that his ‘personal circumstances and stressors’ have hindered his progress.

21. The Tribunal accepts [Ms A]’s opinion as to the applicant’s mental health. At the same time, it notes that [Ms A] appears to have accepted the applicant’s account of the triggers for the stress. The timing of the consultations is unclear, and there is little to indicate the context in which the applicant divulged this information to [Ms A], or whether she explored or tested it with him. (The Tribunal had flagged to the applicant, for instance, the potential value of contemporaneous clinical notes to assist in its consideration of any medical evidence.) Finally, while [Ms A] emphasises that the applicant’s separation from his partner is a major stressor, her recommendation is only that he ‘is not put in any situations or positions that will strain his psychological wellbeing or factors that may deteriorate his progress any further’. Taken as a whole, the Tribunal considers that [Ms A]’s opinion indicates that the applicant is subject to stress, which may be attributable in part to his inability to travel overseas on his current visa. However, it is of limited probative value in assessing the reason(s) for the applicant’s travel abroad, namely whether the applicant has a male partner in [Country 2], and whether his separation from this man is a major stressor.

    Other factors

22. The applicant gave as the sole reason for his travel his wish to see his partner (and alleviate his mental health issues arising from their separation).  Nonetheless, the material that he provided to the Department and the Tribunal alludes to some other factors that are potentially relevant.

    §  As the Tribunal put to the applicant, his regular travel to [Country 1] (and beyond) in 2015, 2016 and 2017 is potentially consistent with his claim to have been visiting a partner in [Country 2] on those occasions. However, he has provided minimal evidence to indicate that he was in [Country 2] for those periods, or together a partner. The Tribunal considers this relevant, not just to show the genuineness and significance of his stated wish to visit his claimed partner in [Country 2], but also to dispel concerns that he may have spent time in Lebanon (even if, as the claimed, there are no entry stamps in his passport to show this).

    §  The Tribunal accepts that the lapse of time is a relevant consideration, since both the applicant’ lodgement of his substantive visa application in 2014, and his last travel abroad. However, the applicant relied on that solely with reference to how long he had been separated from his partner.

23. The applicant also mentioned in his bridging visa application that he wished to visit [Country 1] for business and holiday purposes, and [Ms A] referred in her letter of 11 December 2018 of his wish to visit ‘beloved ones’. During this review, the applicant did not mention any such additional reasons for his proposed travel. The Tribunal therefore does not consider that they are relevant to its assessment at the time of this decision.

24. In sum, the Tribunal recognises the applicant’s strong wish to depart and re-enter Australia, and that his inability to obtain a bridging visa B has caused stress. However, there is limited evidence about the circumstances of his past return trips to the Middle East; about the claimed relationship with a man in [City 1]; and about his future plans. This leaves the Tribunal unable to be satisfied that the applicant’s stated reason for his future travel, to visit his partner in [Country 2] and alleviate the mental stress that their separation causes him, are ‘substantial reasons’ within the meaning of cl.020.212(3)(e). The applicant therefore does not meet cl.020.212(3).

25. The Tribunal is not satisfied that the applicant meets the criteria at the time of application. Accordingly, he does not meet cl.020.212(1). cl. (2)(d), (3)(e), (4)(d) and (5)(f).

26. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 020 Bridging B visa.

    DECISION

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

    James Silva
    Member