1910423 (Migration)

1910423 (Migration) [2020] AATA 641 (2 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1910423
MEMBER:David Barker
DATE:2 March 2020
PLACE OF DECISION: Sydney
DECISION: The Tribunal remits the applications for reconsideration, with the direction that the applicants meet the following criteria for Subclass 020 visas:
·cl.020.212(3) of Schedule 2 to the Regulations

Statement made on 02 March 2020 at 8:46am

CATCHWORDS
MIGRATION – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – ‘substantial reasons’ for travel – important, of real worth or value – need to accompany and support wife in third country – mental health condition treatment – risk of divorce – genuine need to travel – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
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

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) (Subclass 020) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visas on 8 April2019. The delegate made a decision to refuse to grant the visa on 16 April 2019.
When the applicants’ Class WB visa was lodged, the applicant had a judicial review pending for the refusal of Class XA Subclass 866 protection visas that had been reviewed by the Tribunal in 2017 (AAT case: 1511530)
The delegate made the decision on the basis of all the information available to him or her that the applicant did not satisfy clause 020.212(3)(e) as required to satisfy a criterion for the grant of the visas under the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the proposed reasons for the applicant’s travel were substantial.
The applicant appeared before the Tribunal on 25 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The applicant is a national of Bangladesh and is [age] years old. He first arrived in Australia November 2013 on a [visitor visa]. The applicant departed and arrived several times whilst on the visitor visa, namely he departed in November 2013 and returned in March 2014, before again departing in April 2014 and returning in November 2014.
The applicant is married, with two [children], aged [age] and [age] years. His wife and children live in Bangladesh, as do the applicant’s parents and members of his extended family. He has three [siblings] who reside and work in [Country 1].
The applicant applied for a XA-866 protection visa in January 2015, which was refused. The Tribunal (differently constituted) affirmed that decision in June 2017. The applicant applied for a judicial review of that decision, which is currently before the Federal Circuit Court awaiting listing for a hearing date.
The applicant was granted a bridging A (BVA) visa in connection with the XA-866 protection visa application on 30 January 2015 and a further BVA visa 30 June 2017 at about the time the matter was lodged with the Federal Circuit Court. He previously applied for and was granted a bridging B (Class WB) (Subclass 020) (the BVB) visa on 28 February 2018 and left Australia [in] March 2018, before returning [in] April 2018. This BVB specified he must not arrive back in Australia [after] May 2018.
The applicant applied for the BVB in 2018 on the basis of needing to accompany and support his wife whilst she undertook required treatment for a mental health condition in [Country 3].
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant's reasons for wish to leave and re-enter Australia are substantial.
To be eligible for Subclass 020 Bridging Visa B the applicant must, relevantly, meet the requirements set out in subclause 020.212(3) of the Migration Regulations.
Subclause 020.212(3) states:
(3)  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)  either:
(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; or
(ii)  the applicant:
(A)  is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in subparagraph (i); and
(B)  made a substantive visa application that was combined with the substantive visa application mentioned in subparagraph (i); and
(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.
The Tribunal accepts that the applicant has made a valid application for a substantive visa, being a protection visa and has applied, within statutory time limits, for judicial review of a decision in relation to the applicant’s protection visa application, and the judicial review proceedings (including proceedings on appeal, if any) have not been completed and that he wishes to leave and re-enter Australia during the processing of that application, and accordingly he meets cl. 020.213 (a), (b), (c) and (d). Subclause 020.212(3)(e) requires that the Minister (or Tribunal on review) is satisfied that the applicant’s reasons for wishing to leave Australia and return are substantial.
‘Substantial reasons’ is not defined in the Regulations. Departmental policy guidelines refer to ordinary dictionary meanings of "substantial" relevant in this context as "real", "actual", "important" and "of real worth or value" and suggests that decision makers apply these meanings to assess whether the reasons for travel is “important”, in the sense of real worth or value, and “genuine”, in the sense of real and actual.
The Department’s policy suggest that ‘substantial reasons’ for wishing to travel could include travel associated with:[1]
[1] PAM3: Sch2 Visa 020 - Bridging B – Assessing the travel criteria – Substantial reasons to leave and re-enter Australia – Substantial reason for wishing to travel.
- the person's employment, business or education - for example:
- the person's family, other relatives or other person important to the person - for example:
- the person's substantive visa application - for example:
The Department’s policy emphasises that the above examples are a guide only and not exhaustive and that policy should not be applied inflexibly and each application should be assessed on its individual merits. The Tribunal is mindful that policy is not binding on it, but unless a cogent reason otherwise is apparent, may be useful, and appropriate, to consider as a guide.
In their decision record, the delegate did not provide any specific or detailed for reasons for the applicants’ failure to satisfy 020.212(3)(e): the applicant’s ‘substantial’ reasons for wishing for travel. The Tribunal has considered the applicant’s claims as to why he wishes to leave Australia and then return.
Is the reason for wishing to travel substantial – that is, is it important, of real worth or value.
The reason put forward by the applicant at hearing for why he wishes to leave Australia and then return is so that he can meet his wife and children in [Country 2] and accompany them whilst his wife undertakes a required medical test or examination that will assist her treating psychiatrist in Bangladesh more effectively treat her mental health condition. In discussing the background to the referral by his wife’s psychiatrist, for what is referred to as a ‘TMS’, which is not available in Bangladesh, the applicant explained that his marriage is under a lot of pressure and he is at risk of his wife divorcing him. He gave evidence at hearing that it is not in his, his wife or his two [children]’s interests for a divorce to take place. The applicant indicated he most recently had direct contact with his wife and children in April 2018, at the time he previously departed from Australia. At that time he met with his wife and children in [Country 3].
The applicant’s oral evidence at hearing was in part consistent with what he has contended in written submissions provided with his review application. In these submissions he has emphasised the need for his wife to have a consultation with a specific doctor in [Country 2] and has not referred to the current risk of marital breakdown. Whereas at hearing he spoke of how angry his wife is about their family’s circumstances, in his written communication with the Tribunal he referred to a significant deterioration in her mental health condition and of his concern for his two [children] who are in her care.
From the aforementioned evidence and claims, the Tribunal has identified the following reasons put forward for wishing to travel:
a)His wife has a mental health condition, the effective treatment of which requires a diagnostic procedure that is not available in Bangladesh;
b)He needs to provide support to his wife and children whilst his wife is in [Country 2] for the diagnostic procedure;
c)He has concern as to the potential impact his wife’s mental health condition has upon their two [children], who are in her care;
d)His marriage is under pressure and he is at risk of his wife initiating divorce proceedings against him.
The Tribunal is satisfied that these reasons, involving the best interests of his children and mental health of his wife are important and of real worth and accordingly are substantial.
Is the need to travel genuine – that is, is it real and actual
The applicant's email submission, dated 1 December 2019, contends he is faced with a family emergency caused by his wife’s mental health condition. His description of his wife’s condition at hearing focussed on her angry and disrespectful interactions with him during regular phone conversations and of her threat to divorce him. The applicant was aware his wife is reviewed by her treating doctor, [Dr A], psychiatrist, on a monthly basis, as she stressed how much money this costs him.
The applicant presented with little insight into other symptoms his wife is suffering from at the present time, or of the treatment she is receiving for her mental health condition. He contended that [Dr A] has been unable to accurately diagnose his wife’s mental health condition and that this is why the consultation with a doctor in [Country 2] is necessary. In contrast to this claim, the referral letter from [Dr A], which the applicant has provided in support of his claims, provides a clear diagnosis for the applicant's wife, being OCD (obsessive compulsive disorder) with depression and that she has been treated, with only partial affect, with [medication]. [Dr A]’s letter states that the applicant’s wife requires ‘TMS’, which is not available in Bangladesh. TMS is a treatment for OCD, (Transcranial Magnetic Stimulation[2]) rather than a diagnostic procedure.
[2] integrating Deep Transcranial Magnetic Stimulation into the OCD Treatment Algorithm
Other information provided by the applicant at hearing indicates [Dr A] has previously recommended his wife have the opportunity to spend time together with the applicant and their young children in the hope this would assist with the management of her depression and related mental health difficulties. The applicant said that this influenced [Dr A]’s recommendation his wife travel to [Country 3] in early 2018, so as to spend some time with the applicant. The Tribunal considers this claim plausible and that it provided at least part of the reason his wife sought medical advice in [Country 3] in 2018. This previous [Country 3] trip by his wife in 2018 provided the rationale for the applicant’s previous application for a BVB in February 2018.
The applicant gave evidence at hearing that his wife was asked to move out from where she had previously lived, along with their [children], in an apartment within a residential building owned by his brothers where other members of the applicant’s extended family reside. He described his wife becoming estranged from her sister-in-laws and other members of his extended family. He said his wife feels judged by other people, because he is not there looking after her and their children. He said she also has difficulty explaining to their younger [child] why he is not with the family. The applicant said he has had minimal contact with his youngest child since she was born. He said that his wife’s only current source of support is her elderly mother. He said that her father is deceased and her only sibling, a younger brother, recently married.
The Tribunal is satisfied the applicant’s description of these intra-familial dynamics is plausible, particularly in the context of the reported mental health conditions impacting the applicant’s wife and the length of time that she has had to cope in Bangladesh without the presence of the applicant. [Dr A]’s report that there is a history of psychiatric illness in the wife’s family and the diagnostic information provided in his referral letter and clinical notes are consistent with the contention that ongoing stressors affecting the applicant’s wife have contributed to both her mental health condition and the doctor’s recommendation she may benefit from having further contact with the applicant, albeit even for a brief period of time. Country information supports the contention that there would be significant stressors upon a woman with two young [children] living in Bangladesh at the present time, in effect as a single parent[3].
[3] DFAT Country Information Report: Bangladesh - 22 August 2019
The applicant did not present at hearing as a fully reliable witness. He conveyed confidence in his claim that his wife’s mental health had yet to be formally diagnosed, when the documentary evidence belies this claim. In my view, the applicant displayed a propensity to enhance the seriousness of circumstances he was discussing, or respond with apparent certainty when he was unsure of particular facts. He conceded the primary motive for [Dr A]’s recommendation his wife travel to [Country 3] in 2018 was to spend time with the applicant, rather than as previously claimed, for medical treatment which was available in [Country 3] but not in Bangladesh. The Tribunal is satisfied this remains an influencing factor on the current referral for mental health treatment in [Country 2]. The Tribunal notes that the applicant's current [Country 2] visa expires in May 2020 and also that at hearing he made no submission in relation to the need to extend this visa.
Notwithstanding these findings, the Tribunal is satisfied the evidence demonstrates the applicant’s wife has a mental health condition and that her treating psychiatrist has referred her to a doctor in [Country 2], for a specific treatment that is unavailable in Bangladesh. The Tribunal is satisfied that there is a reasonable explanation for why the applicant’s wife would be accompanied by her two children and that the presence of the applicant would be of benefit to his wife and children during the period of proposed TMS treatment.
The Department’s policy guidelines further state that a substantial reason for wishing to travel would include the person’s substantive visa application, for example, travelling outside of Australia for personal reasons because the processing or review of their substantive visa application has been protracted. The applicant applied for the protection visa in January 2015 and the Tribunal is satisfied the personal reasons put forward by the applicant for wishing to travel to [Country 2] to see his wife and children are reasonable.
The applicant’s request travel to [Country 2] and then return whilst awaiting the outcome of the judicial review currently underway under these circumstances discussed above in the view of the Tribunal substantial and accordingly satisfy cl.020.212(3)(e) and has concluded that the matter should be remitted for reconsideration.
DECISION
The Tribunal remits the application for reconsideration, with the direction that the applicants meet the following criteria for Subclass 020 visas:
David Barker
Member

R Vidrine MD September 13, 2019.

[2020] AATA 641

2 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies