1929529 (Migration)

[2021] AATA 3416

1929529 (Migration) [2021] AATA 3416 (23 July 2021)

Corrigendum

DIVISION:Migration & Refugee Division

CASE NUMBER:  1929529

MEMBER:Nathan Goetz

DATE OF DECISION:  23 July 2021

DATE CORRIGENDUM SIGNED:            23 July 2021

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The Tribunal remitted the matter on the basis that the applicant satisfied cl.020.211(2)(d) not cl.020.211(2)(b) as contained in the Decision Record. This was a typographical error.

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1929529

MEMBER:Nathan Goetz

DATE:23 July 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 020 visa:

·Cl.020.212(2)(b) of Schedule 2 to the Regulations

Statement made on 23 July 2021 at 12:27pm

CATCHWORDS
MIGRATION –Bridging B (Class WB) visa– Subclass 050 (Bridging (General)) – reasons for wishing to leave and re-enter Australia are substantial – genuine intention to travel – visit child – decision under review remitted

LEGISLATION
Migration Act 1958, ss 73
Migration Regulations 1994, Schedule 2, cls 020.211, 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 of Home Affairs under s.73 of the Migration Act 1994 (Cth) (‘the Act’) refusing to grant the applicant a Bridging B (Class WB) (Subclass 020) visa.

   IDENTITY, MIGRATION HISTORY AND CHRONOLOGY

2. The applicant identifies as a male citizen of Sri Lanka who first arrived in Australia holding a higher education sector visa on [date] March 2013.

3. He departed Australia on [date] May 2013 and returned on [date] May 2013.

4. He departed Australia on [date] May 2014 and returned on [date] May 2014.

5. On 11 March 2015 the applicant applied for a protection visa. On 12 March 2015 the applicant was granted a bridging via.

6. On 15 March 2015 the applicant’s higher education sector visa ceased.

7. On 24 November 2015 the applicant’s bridging visa ceased. On 24 November 2015 the applicant was granted another bridging visa.

8. He departed Australia on [date] December 2015 and returned on [date] January 2016.

9. On 5 July 2016 the applicant’s bridging visa ceased. On 5 July 2016 the applicant was granted another bridging visa.

10. He departed Australia on [date] July 2016 and returned to Australia on [date] August 2016.

11. On 27 April 2017 the applicant’s bridging visa ceased. On 27 April 2017 the applicant was granted another bridging visa. This bridging visa remains in effect.

12. He departed Australia on [date] April 2017 and returned to Australia on [date] May 2017.

13. On 15 March 2018 a delegate refused to grant the protection visa. On 3 April 2018 the applicant applied to the Tribunal for review of the refusal decision. This matter has not yet been determined by the Tribunal: AAT case 1809207.

14. On 11 October 2019 the applicant applied for the bridging visa. On 16 October 2019 the delegate refused to grant the visa on the basis that the applicant did not satisfy cl.020.212(2)(d) of the Migration Regulations 1994 (‘the Regulations’). On 18 October 2019 the applicant applied to the Tribunal for review of the refusal decision.

15. The Tribunal considered the information it had but was not able to make a decision favourable to the applicant. Accordingly, the Tribunal invited the applicant to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review.

16. As the applicant resides outside New South Wales, the Tribunal organised for the Tribunal hearing to occur by telephone.

17. On 23 July 2021 the applicant appeared by telephone at the Tribunal hearing.

    CRITERIA FOR THE VISA

18. The applicant is required to satisfy the requirements at the time he applied for the bridging visa. He must continue to satisfy the criteria at the time of decision.

19. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.020.212(2)(d). The delegate therefore found that the applicant failed to satisfy cl.020.212.

    020.212(2)  

    (2)  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 has not been finally determined; and

    (c)  the applicant wishes to leave and re-enter Australia during the processing of that application; and

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

20. The Tribunal notes that cl.020.212 requires the applicant to satisfy cl.020.212(2), (3), (4) or (5).

21. As the subclauses are ‘or’, it means that the delegate was required to consider all of  subclauses when making the refusal decision, because the applicant may have been able to satisfy (3), (4) or (5) despite the delegate finding that the applicant did not meet cl.020.212(2).

22. The delegate would not have been required to consider (3), (4) or (5) if the delegate was satisfied that the applicant met cl.020.212(2).

    department policy considerations

23. The relevant policy is [Sch2Visa020] Sch2 Visa 020 - Bridging B with document identity VM-966. This policy was reissued on 19 November 2016. The policy provides:

    1)The migration legislation does not define "substantial" in the BVB context. The ordinary dictionary meanings of "substantial" that are relevant in this context are "real", "actual", "important" and "of real worth or value". Officers must bear in mind the above dictionary meanings of "substantial" and apply them in two ways to the assessment of the criterion:

    ·     Is the reason for wishing to travel substantial – that is, is it important, of real worth or value and

    ·     Is the need to travel genuine – that is, is it real and actual

    2)It is departmental policy that both these aspects are assessed and satisfied. For example, if a person applied for a BVB on the basis that their parent was very sick they would have a substantial reason for wishing to travel. However, if an investigation of the department's systems indicated that the parent was in Australia there would not be an associated genuine need to leave Australia.

    3)However, departmental policy should not be applied inflexibly, and each application should be assessed on its individual merits.

    4)A substantial reason for wishing to travel would include travel associated with:

    the person's employment, business or education - for example: attending work or study conferences participating in business negotiations or meetings undertaking academic research or presenting papers, or
    the person's family, other relatives or other person important to the person - for example: visiting a seriously ill family member, relative or close friend attending the wedding, or other culturally important event, of a family member relative or close friend attending the funeral of a family member, relative or close friend, or
    the person's substantive visa application - for example: undergoing medical treatment for an existing condition obtaining documentation needed to satisfy legal criteria resolving custody issues relating to a claimed family unit member travelling outside Australia for personal reasons (including having a holiday) because the processing or review of their substantive visa application has been protracted.

    5)The above examples are given as a guide to the types of reasons that could be considered and are not exhaustive. Officers must use their judgment when deciding if they are satisfied that the person's reasons for wishing to travel are substantial and document the reasons for their decision. 

24. The Tribunal has considered this policy when making its findings.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Bridging visa application form and attached documents

25. In the bridging visa application form, the applicant declared his intended overseas travel destination as the [Country 1] with an expected departure date of [date] December 2019 and expected return date of [date] December 2019. He provided details of his proposed address in the [Country 1] which he identified as his parents-in-law’s home. Attached to the application form was a booking reference [number deleted] for travel with [Country 1] Airlines during the identified travel dates.

26. The applicant also provided a written statement with the bridging visa application form. He noted that he had travelled previously on a bridging visa. He travelled once to the [Country 1] to see his wife after the birth of their son, and twice to [Country 2] to see his family. He returned to Australia during the specified travel period. The last time he visited his family was in 2017.

27. The applicant wrote that he was going through a difficult time in his life. He fears his uncertain future and often feels lonely and anxious. Spending time with family and celebrating his son’s [birthday] on [date] December 2019 would help him address this.

28. Attached was a document that appeared to be the applicant’s son’s birth certificate issued by authorities in the [Country 1]. The document notes that the applicant and the mother of the child were married in Australia in October 2014 and that the applicant’s wife is a citizen of the [Country 1].

    Documents submitted to the Tribunal

29. The Tribunal wrote to the applicant prior to the Tribunal hearing and requested he provide copies of all the pages of his passport, a copy of his marriage certificate, to address where he went during the periods of travel outside Australia as detailed in the migration history, and to provide information about how he was able to enter the [Country 1]. The Tribunal asked that if a visa was required for the applicant to enter the [Country 1] whether the applicant had already applied for such a visa and if so, to provide the Tribunal a copy of the visa application form. If the visa had already been granted, the Tribunal asked for a copy of the visa grant notice.

30. The Tribunal requested that this information be provided by 4pm on 22 August 2021.

31. The applicant provided the Tribunal with copies of all the pages of his Sri Lankan passport that was issued [in] 2015. The passport noted that the applicant previously had a Sri Lankan passport.

32. The applicant also detailed his travel history as follows:

    ·[May] 2013 and return to Australia [in] May 2013: Sri Lanka

    ·[May] 2014 and return to Australia [in] May 2014: [Country 2]

    ·[December] 2015 and return to Australia [in] January 2016: [Country 1]

    ·[July] 2016 and return to Australia [in] August 2016: [Country 2]

    ·[April] 2017 and return to Australia [in] May 2017: [Country 2]

33. He provided a copy of his Marriage Certificate issued by the State of Victoria showing that they were married [in] October 2014 in [a suburb]. The applicant also provided a letter from a function centre in Sri Lanka from 2013, presumably in relation to his brother’s wedding.

34. The applicant provided no information concerning how he was able to travel to the [Country 1], whether he required a visa, whether he had already applied for a visa, or whether a visa had already been granted to him.

35. In the course of the Tribunal hearing, the applicant provided a copy of the bridging visa that was granted to him on 27 April 2017. The grant notice provides that this visa (which is a Bridging B visa) remains in effect until a decision is made on the protection visa application. It provides a travel facility that allows multiple departure and entry, but only allowed that to occur until 17 May 2017. A discussion about this is detailed below.

    Discussion at Tribunal hearing

36. The Tribunal noted that the applicant already had a Bridging B visa and asked why he was applying for the same type of visa. The applicant said that it was because he had already traveled on the bridging visa and suggested that he was only allowed to depart and re-enter Australia once. By this stage the applicant had not provided a copy of the visa grant notice, which did not support the applicant’s assertion. The Tribunal does not find that the applicant was deliberately misleading the Tribunal. The Tribunal assumed that there would no facility for multiple travel on a Bridging B visa and, given the previous visa grant provided a very limited timeframe from the grant of the visa to the end of the travel facility, the applicant may well have thought that he could only travel in and out of Australia once during such a short timeframe.

37. In any event, the applicant told the Tribunal that he sought the bridging visa to be able to travel outside of Australia. The purpose of the travel was to see his son who is a Philippine citizen. His son will turn [age] years of age in December 2021. He has not seen his son since 2017 when he last traveled outside of Australia. His son lives in the family home of the applicant’s wife. The family home contains her extended family. The applicant told the Tribunal that his wife is currently in [Country 2]. She is on a working visa. She is an [occupation].

38. The applicant had previously submitted airline tickets to the [Country 1] in December 2019, which has now passed. The Tribunal asked the applicant why he had not submitted an updated itinerary. The Tribunal thought that this would demonstrate that the applicant’s travel was genuine. The applicant explained that the costs for the proposed flights in December 2019 had been refunded and, given that the visa was not granted, and with the borders being shut due to the pandemic, the applicant wanted to wait until the visa was granted before booking the flights.

39. The Tribunal noted that the applicant had not responded to the request for information about his visa to the [Country 1]. The applicant said he did not understand the request, and his passport contained the previous visas to the [Country 1]. He thought that is what the Tribunal was asking. He said he travelled to the [Country 1] previously on a tourist visa. He had not applied for a tourist visa yet because he needed the visa grant indicating he could return. The [Country 1] consulate would not grant the visa unless there was proof he could return to Australia. Given that the applicant applied for a protection visa in Australia, the Tribunal reasons that the [Country 1]  authorities may have concerns that the applicant would become stuck in the [Country 1] if there was no proof that the Australian Government was repaired to let the applicant return to Australia, noting that the applicant refuses to return to Sri Lanka.

40. Given the situation with the international borders, and that no flight had been booked, the Tribunal queried why the applicant wanted the Bridging B visa. The applicant said he wanted to have the travel facility so that he could obtain the visa to the [Country 1] and, once restrictions had eased, he could book a flight to travel to the [Country 1].

41. The Tribunal asked the applicant if his reasons for travel were substantial (that is, to see his son), why he would not migrate to the [Country 1]. The applicant said it was because of a language barrier, that his Australian qualifications were of no use in the [Country 1], and that the family wanted better opportunities and education for their son. The applicant told the Tribunal that the plan was for the applicant to be granted the protection visa and for his wife and son to join him in Australia. He had not made an attempt to migrate to the [Country 1]. The only visa application he had outstanding, other than the case that is the subject of this Decision Record, was the protection visa application.

42. Noting that the theme of the application for the bridging visa appeared to be family reunification, the Tribunal asked why the applicant did not go and live with his wife in [Country 2]. The applicant said that he did not need to a visa to travel to [Country 2] and that other Sri Lankans were in the same situation meaning it was not safe for him, because he could be found there. The Tribunal noted that he had travelled to [Country 2] previously. The applicant responded that it was for short durations.

43. The applicant said that he planned to travel to the [Country 1] for no more than two weeks. That is the only leave he has from his current [employment].

44. The applicant said he was confused about why this Bridging B visa application was refused, given that the department had granted him Bridging B visas previously to depart and re-enter Australia.

    FINDINGS AND REASONS

45. The applicant has made an application for a protection visa which is a substantive visa. The applicant has a review application with the Tribunal concerning that the decision by a delegate to refuse the protection visa. As the matter is outstanding with the Tribunal, the applicant meets cl.020.212(2)(a) and (b). By lodging the bridging visa application and indicating his intention to travel and return to Australia, the applicant meets cl.020.212(c).

46. The issue in this case is whether the Minister (being the Tribunal) is satisfied that the applicant’s reasons for wishing to leave and re-enter Australia during the processing of the protection visa application are substantial. If they are, then the applicant meets cl.020.212(2)(d) and the matter needs to be remitted to the department with the appropriate direction. If not, then then applicant does not meet cl.020.212(d) and the Tribunal must affirm the delegate decision.

47. For the following reasons, the decision under review should be remitted to the department for reconsideration.

48. The applicant has a [age]-year-old child who lives in another country. There is little chance of the applicant’s child or wife being permitted to enter Australia while the protection visa is outstanding, because a decision-maker would be hard pressed to find that the applicant’s wife and child planned to enter Australia temporarily. The only chance for the applicant to see his child in person is to travel and see him, either to [Country 2] if his child travels there to see the child’s mother, or by travelling to the [Country 1] where the applicant’s child is ordinarily resident.

49. Although it could not be said that the applicant or his wife currently care for their child in the ordinary sense of the word, it is not uncommon for parents to live and work elsewhere while others care for the children. It appears that this is such a case. While it could be argued that with the advent of technology that allows videocalls to be frequent and at low cost, they can be no substitute for physical interaction.

50. While it is curious to the Tribunal’s way of thinking that the applicant would insist of pursuing a protection visa in Australia when he could relocate to the [Country 1] as a person who is married to a [Country 1 citizen] and be with his child there, that is quite a separate issue from the Tribunal’s present task.

51. Regarding the absence of a current travel booking, or the absence of a present visa to travel to the [Country 1], the Tribunal is persuaded by the explanation from the applicant about why he does not have a current flight booking, or a visa to travel to the [Country 1]. There absence of a flight booking or visa to the [Country 1] does not suggest that the applicant’s claimed intention to travel is not genuine.

52. Having regard to the department policy, the Tribunal is not persuaded that there is a requirement that visits to family require there to be an element that the family member is sick. It depends on the circumstances. In these circumstances, the applicant intends to visit his [age]-year-old child. The Tribunal would be hard pressed to find that an applicant wanting to visit his biological [age]-year-old child who resides in another country was not substantial.

    CONCLUSION

1. For the reasons given above, the Tribunal is satisfied that the applicant’s reasons for wishing to leave and re-enter Australia during the processing of his protection visa application are substantial.

2. Therefore, the applicant meets cl.020.212(d). This means he meets meet cl.020.212(2) and it is not necessary to consider whether the applicant would meet cl.020.212(3), (4) or (5).

   decision

3. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 020 visa:

   ·Cl.020.212(2)(b) of Schedule 2 to the Regulations

   Nathan Goetz
   Member