1916999 (Migration)

[2019] AATA 4955

1916999 (Migration) [2019] AATA 4955 (12 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1916999

MEMBER:Meena Sripathy

DATE:12 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Bridging B (Class WB) visa:

·cl.020.211 of Schedule 2 to the Regulations; and

·cl.020.212 of Schedule 2 to the Regulations; and

·cl. 020.221 of Schedule 2 to the Regulations.

Statement made on 12 September 2019 at 3:22pm

CATCHWORDS
MIGRATION – refusal – Bridging B (Class WB) visa– Subclass 050 (Bridging (General)) – reasons for wishing to leave and re-enter Australia are substantial – medical evidence provided – applicant experienced financial hardship – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 020.211, 020.212, 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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 June 2019 to refuse to grant the visa applicant a Bridging B (Class WB) Subclass 020 visa under s.65 of the Migration Act 1958 (the Act).

2. The delegate was not satisfied on the evidence provided that the reasons for travel are substantial and therefore do not satisfy cl.020.212(2)(d).  

3. The issue in the present case is whether the Tribunal is satisfied the applicant’s reasons for wishing to leave and re-enter Australia during the processing of his substantive visa application are substantial (cl.020.212(2)(d)).

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

   CLAIMS AND EVIDENCE

5. The applicant arrived in Australia [August] 2014 and applied for a protection visa [in] January 2018.

6. Departmental records indicate that he sought to make multiple applications for a Bridging Visa B (Class WB) (Subclass 020) by post and via ImmiAccount on 12 and 13 June 2019.  His ImmiAccount application of 13 June 2019 was accepted as valid and was assessed by the delegate.  He stated that he wished to travel to [Country 1] for “medical treatment or visit to nearest family members”.  On 14 June 2019 he was requested to provide further information including medical appointment booking confirmation, details of the condition that medical treatment was sought for, medical reports regarding that condition and names and addresses of family members he intends to visit.  No evidence was provided and the delegate refused to grant the visa on the basis of not being satisfied that the reasons for travel are substantial.

7. The applicant applied for review of this delegate’s decision on 27 June 2019. He requested fee reduction which was granted and submitted various documents including a letter from Legal Aid referring him to Asylum Seekers Centre, various medical receipts, and documentation relating to a claim for victims compensation.

8. The applicant appeared before the Tribunal on 9 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

9. At the hearing the applicant confirmed his migration history.  He arrived in Australia in August 2014 for the purposes of study and stated that he studied until 2018. He lodged a Protection visa application in January 2018, and after providing his fingerprints for the purposes of that application, applied for the present Bridging Visa B.   To date his application for protection is pending and he has not yet had an interview with the Department to discuss his claims. He is not presently studying.  He works as a professional [Occupation 1] and also does other casual work.  The applicant confirmed he travelled to India in January 2016.

10. Following his return from India in 2016, he suffered several incidents in Australia, relating to his share accommodation and in the context of his work as a [Occupation 1].  There were people he did not know who were smoking and drinking alcohol and they abused him.  He believes they may also have used his ID without his permission. He was also assaulted on several occasions by unknown persons.

11. He applied for the present visa to travel to [Country 1] because he has no friends or family here and because of these bad experiences.  In [Country 1] he has a close relative, [a] [Relative 1].  Also when he was in India he had some medical issues and he wants the same doctor he had there to treat him.  He is very depressed in Australia and needs support. He wants his family treating doctor to treat him and he believes he may be able to meet him in [Country 1] for treatment.  The applicant also referred to suffering an injury [when] he was young, and that he still has problems [doing a specified thing] because of this.  His family doctor is familiar with his situation and that is why he wants treatment from this doctor.  He said in Australia he is under financial pressure and cannot access medical treatment because he cannot afford it. 

12. The Tribunal asked how then he would be able to afford to travel to [Country 1] given his evidence about his financial difficulties here.  He clarified that he means his work here is not stable and that is why he experiences financial hardship. His [Relative 1] can support him in [Country 1] as he states in the letter of invitation.

13. The applicant confirmed that he has not been to [Country 1] before and does not have a visa to travel there as yet.  He said he has approached the [Country 1] Consulate and they advised him to obtain his visa from Department of Home Affairs and then apply for a visa with them.

14. The applicant handed to the Tribunal documents he has to support a visa application for [Country 1] including a letter of invitation from his relative, [Relative 1]; copy of the biodata page from [Relative 1]’s Indian passport and a document in the [Country 1] language that appears to be a tenancy agreement relating to Mr [Relative 1].  The applicant stated that he intends to submit these documents when he applies for a visa for [Country 1] and believes he will be granted this visa.

15. The Tribunal put to the applicant its concerns that he does not at this time have permission to travel to [Country 1] and the likelihood of getting a visa to travel there (given his status here) is low, and also that he has not provided any evidence to substantiate his relationship with Mr [Relative 1].  It explained that these concerns may lead the Tribunal to not be satisfied that he has established substantial reasons for the travel he seeks to undertake.  In response the applicant said he intends to apply for the visa for [Country 1] when this application is granted and Mr [Relative 1] is his [relative] and the letter of invitation he provided is evidence of his connection to him.  He also showed the Tribunal a copy of Mr [Relative 1]’s [Country 1] residence card on his mobile phone, which the Tribunal noted as sighted.

16. The applicant confirmed he has no relatives in Australia. In India he has his parents.  His father travelled to Australia previously and visited him for 3 months. When asked if he could visit him again, or his mother could visit him for support, the applicant said they could not because of financial pressures.  He said he has financial hardship and cannot support them to visit him.  When asked if his [Relative 1] in [Country 1] can visit him here for support, the applicant said he has not asked him but does not think he can because he has his own family there. 

17. Following the hearing the applicant provided a copy of [Relative 1]’s [Country 1] residence card and a translation of [Relative 1]’s lease agreement in [Country 1].

    CONSIDERATION

18. To be eligible for Subclass 020 Bridging Visa B the applicant must, relevantly, meet the requirements set out in subclause 020.212 (2) of the Migration Regulations. The Tribunal accepts that the applicant has made a valid application for a substantive visa that has not yet been finally determined and that he wishes to leave and re-enter Australia during the processing of that application, and accordingly he meets cl. 020.212 (a), (b) and (c). Subclause 020.212(2)(d) requires that the Minister (or Tribunal on review) is satisfied that the applicant’s reasons for wishing to leave Australia and return are substantial.

19. ‘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 officers 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.  Policy indicates that ‘substantial reasons’ for wishing to travel could include travel associated with:[1]  

    ·     the person’s employment, business or education (e.g. work or study conferences, business meetings, academic research)

    ·     a family member, relative or close friend (e.g. serious illness, wedding, funeral)

    ·     the person’s substantive visa application (e.g. for treatment of a medical condition, getting documents to satisfy criteria, resolving custody issues, or personal reasons due to protracted processing of the application).

    but emphasises that the above examples are a guide only and not exhaustive and that departmental 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 it may be useful, and appropriate, to consider as a guide.

    [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 (reissued 01/06/2018).

20. In the present case, the applicant states he wishes to travel to [Country 1] to visit his [Relative 1] and his family.  He claims he has no family support in Australia and has suffered numerous adverse experiences here in recent years.  He also claims he suffers from medical issues and would like to obtain treatment from his family medical practitioner, who may be able to meet him in [Country 1] for this purpose. 

21. The Tribunal has carefully considered the evidence and arguments put forward by the applicant in support of his application for a Bridging visa B and the legislative criteria to be applied.  In essence the Tribunal has to be satisfied that the applicant’s reasons for wishing to leave and re-enter Australia are substantial.  There is little specific legislative or case law guidance on the meaning of that term.  While not binding on the Tribunal, it has considered the policy guidance as referred to above.  However, it is important that any such guidance not put a gloss of the ordinary meaning of the term. 

22. Although he has not provided evidence to substantiate the family relationship between himself and [Relative 1], on the basis of the letter of invitation, copy of passport and copy of [Relative 1]’s residency card provided, and his oral evidence that he is his blood relative, the Tribunal is prepared to accept for present purposes that the applicant has [a] [Relative 1] in [Country 1] whom he wishes to visit and from whom he wants to seek support. It also accepts, on the basis of the medical evidence provided to the Tribunal, documentation relating to his application for victims compensation, repeat applications for a Bridging visa B, and oral evidence to the Tribunal, that he has experienced difficulties and hardships in Australia in recent years.  For example, Dr [A]’s report dated 15 January 2019 refers to him suffering from major depression, and not being currently stable, and that he was assaulted by unknown people. A report by a Counsellor in the context of his victims compensation claim, in March 2019, refers to a history of alleged physical incidents, a diagnosis of adjustment disorder and that he has no support system in Sydney and feels lonely and alienated.  He applied for and was granted reduction of fee for his review application on the basis of financial hardship.  Having regard to all the evidence, the Tribunal is satisfied that the applicant’s reasons for wishing to leave and re-enter Australia to seek support from a family member in [Country 1], are, in the circumstances, substantial, within the broad and ordinary meaning of that term.

23. Having reached this conclusion on the criteria in dispute before it, the Tribunal is not without serious doubts about whether the applicant will be able to obtain the relevant permission from the [Country 1] authorities to travel to [Country 1] from Australia. It notes that information on the [Country 1] Consulate in Sydney website[2] indicates that to apply for a [Visa] from the Sydney Consulate-General a person must be a resident of Australia and that Bridging visas are not considered residency. However notwithstanding this, the Tribunal is of the view that his ability to obtain a [visa] to travel to [Country 1] is not a necessary requirement, and is arguably not a relevant consideration, for him to satisfy cl.020.212(2)(d). The provision is directed to the purpose of the visit rather than the means to achieve it.  

    [details deleted]

24. The Tribunal is satisfied on the departmental records before it that the applicant is the holder of a Bridging Visa A visa and therefore meets cl.020.211 at time of application.  On the basis of the findings above, it is satisfied the applicant meets cl.020.212. It is also satisfied he continues to meet these criteria at time of decision and therefore meets cl.020.221.    

25. Given his perseverance in applying for a BVB (the Tribunal observes he has, since the present application, lodged a further BVB application on 19 August 2019), the Tribunal considers the most appropriate course is to remit this application for further consideration by the Department and, if granted the BVB, allow him to pursue application for a [visa] with the appropriate authorities.

    DECISION

26. The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Bridging B (Class WB) visa:

    · cl.020.211 of Schedule 2 to the Regulations; and

    · cl.020.212 of Schedule 2 to the Regulations; and

    · cl. 020.221 of Schedule 2 to the Regulations.

    Meena Sripathy
    Member