1918707 (Migration)

[2021] AATA 2177

1918707 (Migration) [2021] AATA 2177 (13 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1918707

MEMBER:James Silva

DATE:13 April 2021

PLACE OF DECISION:  Sydney

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

Statement made on 13 April 2021 at 12:13pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – first request for Ministerial intervention unsuccessful – protection visa refused – no outstanding migration matters – applicant made no genuine attempt to make arrangements to depart Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48A, 48B, 72, 73, 85, 137, 137K, 172, 345, 351, 359A, 417
Migration Regulations 1994 (Cth), r 2.20; Schedule 2, cls 050.211, 050.212, 050.221, 050.222, Schedule 8, Visa Condition 8101

CASES
Chen v 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. On 16 June 2019, the applicant lodged an application for a Bridging visa E (BVE). On 25 June 2019, the Minister’s delegate refused the application. The applicant seeks review of the delegate’s decision.

3. The delegate refused the application on the basis that the applicant did not meet cl.050.222, which requires that the applicant has been interviewed by an authorised officer (except in certain circumstances that are not relevant to this matter). As discussed below, the Tribunal considers the key issue in this case is whether the applicant satisfies the primary criterion for the grant of the visa. Specifically, he must meet one of the alternatives set out in cl.050.212(2)-(9) at the time of application, 16 June 2019. He must continue to satisfy this criterion (by meeting any one of the alternatives in cl.050.212(2)-(9)) at the time of this decision, hence on 8 January 2010: cl.050.221. A summary of the relevant law is at the attachment to this decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The key issue is whether the applicant meets any of the primary criteria for the grant of a Bridging visa E. If he met one or more of these at the time of application and the time of decision, the Tribunal would be required to assess whether he would comply with the visa conditions.

   Evidence and Background

6. The Tribunal has before it the following relevant material:

   §  The application for a Bridging visa E, lodged online on 16 June 2019.

   §  The delegate’s decision record of 25 June 2019.

   §  The review application lodged on 11 July 2019, attached to which was the delegate’s decision record.

   §  The Tribunal has also accessed the Department’s movement records, which give a detailed account of the applicant’s migration history, and the Department’s Integrated Clients Service Environment (ICSE) system records, in particular relating to prior visa grants.

   §  On 1 April 2021, the Tribunal wrote to the applicant pursuant to s.359A, inviting his comment/response at interview on 7 April 2021, immediately prior to the hearing, to potentially adverse information. This information related to: (a) his failure to depart Australia, despite prior visa grants on ‘departure grounds’; (b) the finalisation of his protection visa matter, by judicial review, [in] September 2018; and (c) the finalisation of his first Ministerial intervention as ‘not referred’, on 17 April 2019.

7. The applicant appeared before the Tribunal to give evidence and present arguments on 7 April 2021. Immediately prior to the hearing, there was an interview in which the applicant provided his comments/responses to information that the Tribunal had put to him by letter dated 1 April 2021.

8. The hearing and interview were conducted with the assistance of an interpreter in the Tamil and English languages. The applicant is unrepresented in this matter. At hearing, the Tribunal alerted the applicant to legal professional privilege when he started to discuss the advice that his previous lawyer(s) had given him.

   Background

9. The applicant is a [age] year old man from Sri Lanka. He entered Australia [in] September 2012, by boat and without permission.

10. The applicant applied for a protection visa (Safe Haven Enterprise visa), which the Department refused. The Independent Assessment Authority affirmed the decision to refused to grant the visa. The applicant sought judicial review of that decision, and the Full Federal Court finally determined the matter [in] September 2018.

11. Department records[1] indicate that the applicant was granted a Humanitarian Stay (Temporary) subclass 449 visa on 31 January 2013. This visa ceased on 7 February 2013. Section 172(1)(c) states that a person who is refused immigration clearance, or bypasses immigration clearance, and is subsequently granted a substantive visa, is deemed to be ‘immigration cleared’. The subclass 449 visa grant on 31 January 2013 therefore means that the applicant is an ‘eligible non-citizen’ under s.72(1)(a).

    [1] The Tribunal has drawn on the Department’s movement records, and case notes dated 15 October 2018, 18 December 2018 and 20 March 2019.

12. The applicant was granted 12 Bridging E visas, at various times between January 2013 and June 2019.[2] Department case notes relating to the three most recent visa grants include reference to the primary criterion that he met at the relevant times.

    §  On 15 October 2018, the bridging visa was granted ‘on departure grounds’. The delegate was satisfied that he was the subject of acceptable arrangements to depart, as ‘Client was advised to contact IOM to make departure arrangements’.

    §  On 16 December 2018, the bridging visa was granted ‘on MI grounds’, namely on the basis that the applicant had made a first request for Ministerial intervention.

    §  On 20 March 2019, the case notes indicated that the applicant had an ongoing request for Ministerial intervention and, if that were negative, he would be required to contact IOM to make departure arrangements. The delegate was satisfied, presumably on the basis that the applicant would make contact with IOM if needed, that he was the subject of acceptable arrangements to depart Australia.

    [2] 31 January to 31 July 2013; 8 September 2014 to 8 September 2015; 12 September to 12 December 2015; 12 December 2015 to 12 April 2016; 9 March to 9 July 2016; 9 May 2016 to 6 March 2017; 6 March to 9 November 2017; 9 November 2017 to 25 May 2018; 25 May 2018 to 10 October 2018; 15 October to 26 November 2018; 18 December 2018 to 19 March 2019; and most recently, 20 March to 19 June 2019.

13. At interview and hearing, the applicant said that he had not been aware of the Department’s attempts to contact him for an interview (by telephone, SMS and email, according to the decision record), and indicated some frustration at this. At face value, the decision record does suggest that the delegate would have granted the bridging visa had the applicant been available for interview.

    Consideration and assessment

14. The delegate was satisfied that the applicant met cl.050.211(1) and cl.050.211(2) at the time of application (on 16 June 2019). The Tribunal agrees with these conclusions. It is satisfied that, as the holder of a Bridging via E, the applicant met cl.050.212(1)(b). It also satisfied that he met cl.050.212(2). First, he was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9) or (10), as he is deemed to have been ‘immigration cleared’ under s.172(1)(c). Second, he also does not fall within the scope of r.2.20(17), as he held a Bridging visa E and was not an unlawful non-citizen at the time of application.

15. 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.

16. On his online bridging visa E application form, the applicant indicated that he was seeking to meet cl.050.212 on the basis of an ongoing request for Ministerial intervention. As noted above, in the decision under review, the delegate stated their satisfaction that the applicant was ‘subject to departure arrangements’. The Tribunal therefore addresses these primary criteria in that order, and then the remaining primary criteria.

    Ministerial intervention

17. The applicant indicated on his bridging visa application form that he requested the Minister to intervene in his case on 1 June 2019. He did not provide details of the request, except to state that he asked for Ministerial intervention on the basis of changed circumstances in Sri Lanka.

    §  This suggests that the request was for the Minister to determine under s.48B that s.48A does not apply, in other words, to allow him to make a further protection visa application. Subclause 050.212(5B) requires that the applicant is a person to whom s.48A of the Act applies, and the applicant has made a request to the Minister to determine under s.48B that s.48A does not apply.

    §  The applicant may also be seeking to meet subclause 050.212(6), on the basis that he is the subject of a decision that relates to a visa application made in Australia, or a visa cancellation and has made a request to the Minister to substitute a more favourable decision under ss.345, 351 or 417 of the Act. The decision in question must be a decision for which the Minister has the power to substitute a decision under ss.345, 351 or 417.

18. Significantly, both cl. 050.212(5B) and (6) also require this must be a first request (Tribunal emphasis) under s.48B in relation to the applicant, or a request to the Minister for the exercise of the Minister’s power under ss.345, 351 or 417 of the Act.

19. As the Tribunal put to the applicant in the s.359A letter, and discussed at interview and hearing, his first request for Ministerial intervention was finalised as ‘not referred’ on 17 April 2019. He acknowledged this without further comment. As such, the applicant cannot meet either cl.050.212(5B) or cl.050.212(6) on the basis of a request for Ministerial intervention that he made on 1 June 2019.

20. The applicant has not claimed, and there is nothing to suggest, that he meets cl.050.212(6AA) on the basis of the Minister having substituted a decision under ss.345, 351 or 417, or cl.050.212(6B) on the basis of any outstanding request made prior to 1 July 2019.

    Acceptable arrangements to depart Australia

21. 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, provides some guidance: Chen v 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]).

22. As noted above, the delegate, in the decision under review, stated their satisfaction that the applicant was subject to making such arrangements, without further details. The case notes relating to the earlier visa grants suggest that the delegates were prepared to accept departure arrangements on the basis of some understanding that the applicant would approach IOM (the visa grant on 15 October 2018), or the availability of IOM facilities in the event that the applicant’s request for Ministerial intervention was unsuccessful (the visa grant on 20 May 2019). It appears that the delegate in the decision under review was likewise satisfied that the applicant was subject to departure arrangements.

23. The Tribunal put to the applicant in its s.359A letter that his continued presence in Australia could lead it to conclude that, at the date of application, he was in fact not making (or subject to) arrangements to leave Australia.

24. The applicant stated clearly at interview and at hearing that he had no intention to depart Australia, at the time of applying for the bridging visa or now.

25. 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, he does not meet cl.050.212(2).

    Other criteria under cl.050.212

26. The applicant does not claim to meet any of the other alternative criteria in cl.050.212. Nonetheless, the Tribunal briefly explored with him whether he meets any of these.

    Substantive visa application: cl.050.212(3)

27. An applicant satisfies cl.050.212(3) if they have made, in Australia, a valid application for a substantive visa of a kind that can be granted if they are in Australia and that application has not been finally determined, or the Tribunal is satisfied that they would apply for such a visa within a period specified for doing so. As noted in the Tribunal’s s.359A letter, and discussed at interview and at hearing, he applied for a protection visa that was finally determined [in] September 2018. The applicant has not claimed, and there is no evidence to suggest, that he has the capacity or intention to make a valid application for any further substantive visa in Australia.

28. The Tribunal is not satisfied that, at the time of application, the applicant has made, or would have made a valid application for a substantive visa that can be granted in Australia.

29. Accordingly, the applicant does not meet cl.050.212(3).

    Judicial review, merits review, s.137K revocation

30. As the Tribunal noted in its letter of 1 April 2021, and as the applicant confirmed at interview and hearing, the judicial review relating to his protection visa application was finalised [in] September 2018. There is no evidence that, at the time of application (12 June 2019), the applicant was subject to an application for judicial review, merits review or s.137 revocation application, of any kind; or that he is member of a family unit of a person involved in relevant proceedings. The applicant therefore does not meet cl.050.212(3A), cl.050.212(4), cl.050.212(4AA) or cl.050.212(9).

    Consequential cancellation (review/revocation of primary cancellation)

31. There is no evidence that the applicant held a visa that was cancelled pursuant to certain sections of the Act, and that an application for review or revocation of the visa cancellation has been or will be made. The applicant therefore does not meet cl.050.212(5) or cl.050.212(5A).

    Court declaration / review of citizenship decision

32. There is no evidence that the applicant has made an application for a Court declaration or for a review of a citizenship decision. Accordingly, the applicant does not meet cl.050.212(4AB) or cl.050.212(4AB).

    Compelling need to work

33. On 16 June 2019, at the time of application, the applicant was the holder of a Bridging E visa that was about to expire. Subclauses cl.050.212(6A) and cl.050.212(8) apply to the holders of certain Bridging E visas, where the Tribunal is satisfied that the applicant has a compelling need to work. Clause 050.212(6A) applies if the Minister has substituted a decision under s..345, 351 or 417 of the Act, but the visa has not been granted because of a visa cap under the operation of s.85). Clause 050.212(8) applies if the applicant holds a Bridging E visa that was granted as a result of a valid application for a substantive visa that could be granted onshore and is the subject to condition 8101 (No Work).

34. Hence, although the applicant held a Bridging E visa at the time of application, the Minister did not substitute a decision under s.345, 351 or 417, as required by cl.050.212(6A); and the Bridging E visa that he held was not granted due to an ongoing application for a relevant visa (but rather, on the grounds of his having made a first request for Ministerial intervention) (hence, outside the scope of cl.050.212(8). He therefore does not meet cl.050.212(6A) or cl.050.212(8) as the holder of a relevant Bridging E visa who has a compelling need to work. The applicant therefore does not meet  cl.050.212(6A) or (8).

    Criminal Detention  

35. The applicant was not in criminal detention at the time of application. Accordingly, he does not meet cl.050.212(7).

    Summary

36. As the applicant does not meet any of the alternatives set out in cl.050.212(2)-(9), he does not meet cl.050.212 at the time of application. As this is an essential requirement for the grant of a Subclass 050 visa, he cannot be granted the visa.

    Other matters

37. As noted above, the applicant appears to have a limited understanding of migration law, and to have received only occasional pieces of advice. At hearing, he acknowledged that no longer held a visa, and said that he had sought review of the Department’s bridging visa refusal on the understanding that having a Tribunal file number was akin to have legal status. (The implication was that an ongoing Tribunal matter would prevent his removal from Australia.)

38. During the course of this review, and in particular in emails dated 29 March and 1 April 2021, the applicant submitted materials relating to his protection visa application. The Tribunal wrote to him on 1 April 2021, and reiterated at hearing, that this review was confined to the issue of his eligibility for a bridging visa and would not address any protection claims.

39. At hearing, the applicant expressed his strong wish to remain in Australia lawfully, with work rights and access to Medicare. The Tribunal undertook to note this, and recommended that he discuss his further options with a migration agent, solicitor or Department officer.

    Conclusion

40. For the reasons stated above, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

41. 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

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

    James Silva
    Member

    ATTACHMENT: RELEVANT LAW

    Class WE visas contain two subclasses: Subclasses 050 and 051. In the present case, the applicant seeks 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).

    The primary criteria for the grant of a subclass 050 visa include subclause 050.212. This states that, 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.

    Substantive visa application

    The applicant meets subclause 050.212(3) if s/he 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.

    ‘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.

    Acceptable arrangements to depart Australia

    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]).

    Judicial review, merits review, s.137K revocation

    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.

    Subclause 050.212(4) is met if:

    (a)the applicant has applied for judicial review of a decision in relation to a substantive visa (other than a decision to refuse the visa); or

    (aa)the Minister has applied for judicial review of a decision in relation to the applicant’s substantive visa application (other than a decision relating to refuse the visa); or

    (b)the applicant has applied for merits review of a decision to cancel a visa; or

    (ba)the applicant has applied under s.137K for revocation of the cancellation of a visa; or

    (bb)the applicant has applied for merits review of a decision under s.137L not to revoke the cancellation of a visa; or

    (c)the Minister (or Tribunal) is satisfied that the applicant will make an application of a kind referred to in cl.050.212(4)(b), (ba) or (bb); or

    (d)the applicant has applied for judicial review of the validity of a law that affects their eligibility to apply for a substantive visa or their entitlement to be granted or continue to hold a substantive visa.

    Subclause 050.212(4AA) is met if the applicant is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in cl.050.212(3A)(b), (4)(a), (4)(aa) or (4)(d), that other person is not a party to a representative proceeding, and the applicant made a combined substantive visa application with that other person’s application.

    Subclause 050.212(9) is met if a decision to refuse the applicant (or a member of the family unit who has made a combined application) a Class BC or BI visa is the subject of valid judicial review proceedings that have not been completed, and the applicant (or member of the family unit) does not satisfy cl.010.211(6)(c) for the grant of a Bridging A (Class WA) visa.

    Consequential cancellation (review/revocation of primary cancellation)

    Subclause 050.212(5) is met if the applicant held a visa that was cancelled under s.140(1) or (3) because another person’s visa was cancelled, and that other person has applied for review of their visa cancellation decision (or alternatively, the Tribunal is satisfied the other person will make such an application).

    Subclause 050.212(5A) is met if the applicant held a visa that was cancelled under s.140(1), (2) or (3) because another person’s visa was cancelled under s.137J, and that other person has applied for revocation of their visa cancellation under s.137K or has applied for merits review of a non-revocation decision made under s.137L (or alternatively, the Tribunal is satisfied the other person will make such an application).

    Court declaration / review of citizenship decision

    Subclause 050.212(4AAA) is met if the applicant has applied for a declaration from a Court that the Migration Act does not apply to the applicant, or has applied for judicial review or merits review of a decision made in relation to the applicant under the Australian Citizenship Act, and those proceedings have not been completed.

    Subclause 050.212(4AB) is met if the applicant is a member of the immediate family (as defined under r.1.12AA) of a person who meets the requirements of cl.050.212(4AAA), or is a brother or sister (who has not turned 18) of a person who meets the requirements of cl.050.212(4AAA) and who has not turned 18.

    Ministerial intervention

    Subclause 050.212(5B) is met if the applicant is a person to whom s.48A of the Act applies, and the applicant has made a request to the Minister to determine under s.48B that s.48A does not apply. There must not have previously been such a request under s.48B in relation to the applicant, or a request to the Minister for the exercise of the Minister’s power under ss.345, 351 or 417 of the Act.

    Subclause 050.212(6) is met if the applicant is the subject of a decision that relates to a visa application made in Australia, or a visa cancellation and has made a request to the Minister to substitute a more favourable decision under ss.345, 351 or 417 of the Act. The decision in question must be a decision for which the Minister has the power to substitute a decision under ss.345, 351 or 417, and there must not have previously been such a request, or a request for a determination under s.48B of the Act. _

    Subclause 050.212(6AA) is met if the Minister has substituted a decision under ss.345, 351 or 417 of the Act, but the visa has not been granted because of a visa cap in operation under s.85 of the Act.

    Subclause 050.212(6B) is met if the applicant has an outstanding request to the Minister under ss.345, 351 or 417 of the Act made before 1 July 2009, and holds, or has held, a Bridging E visa granted before 1 July 2009 on the basis of the applicant meeting cl.050.212(6A) or, for visa applications made on or after 14 September 2009, cl.050.212(6) or (6A).

    Compelling need to work

    Subclause 050.212(6A) is met if the applicant holds a Bridging E visa that was granted on the basis of meeting cl.050.212(6AA), the applicant is the subject of a favourable exercise of the Ministerial power under ss.345, 351 or 417 of the Act, and the Tribunal is satisfied that the applicant has a compelling need to work.

    Subclause 050.212(8) is met if the applicant holds a Bridging E visa that was granted as a result of a valid application for a substantive visa that could be granted onshore and is subject to condition 8101, and the Tribunal is satisfied that the applicant has a compelling need to work.

    ‘Compelling need to work’ is defined in r.1.03 of the Regulations as having the meaning set out in r.1.08. Regulation 1.08 provides that a non-citizen has a compelling need to work if he or she is in financial hardship. Financial hardship is not defined in the legislation, however Departmental guidelines (PAM3) provide guidance on matters that may be relevant in determining financial hardship.

    Criminal Detention

    Subclause 050.212(7) is met if the applicant is in criminal detention, and no criminal justice stay certificate or warrant is in force. A person is in ‘criminal detention’ if he or she is serving a term of imprisonment, including periodic detention, following conviction for an offence, or is in prison on remand. However, a person is not in criminal detention where they are subject to a community service order, on parole after serving part of a term of imprisonment, or on bail awaiting trial (r.1.09). Periodic detention is defined in r.1.03 to mean a system of restriction of liberty by which periods at liberty alternate with periods in prison.