2000413 (Migration)

[2020] AATA 281

2000413 (Migration) [2020] AATA 281 (20 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2000413

MEMBER:Sean Baker

DATE:20 January 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 20 January 2020 at 11:37am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – no identified ground for grant of visa – applicant’s role as cousin’s carer – previous unsuccessful application for ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 48A, 48B, 73, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cll 050.211, 050.212(5B), (6), 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

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. The applicant applied for the visa on 6 January 2020. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, the applicant is seeking 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). Relevantly to this matter, the primary criteria include cl.050.212.

3. The decision to refuse to grant the visa was made on 7 January 2020 on the basis that there was no identified ground for the applicant to be granted the visa. The applicant appeared before the Tribunal on 17 January 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

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 meets one of the grounds for seeking the visa.

6. Prior to the hearing the applicant requested a two week adjournment to gather evidence to support his bridging visa application. The Tribunal responded to the applicant declining that request and noting that on the information before me I was not convinced an adjournment was necessary but that at the hearing I would discuss with the applicant what information he wished to provide to support his application and if appropriate, would provide him with further time after the hearing to produce the material.

7. Initially the Department checklist indicated that there was s.376 material on the file, but this was not identified with any specificity, nor was a comprehensible public interest reason provided. On querying this with the Department they re-issued the checklist indicating there was not any material subject to s.376. I therefore did not raise this with the applicant.

8. At the hearing the applicant said he did not understand the decision as he was not fluent in English. I explained to the applicant that a person must satisfy a ground for the grant of a bridging visa, and I went through with him the possible grounds for grant of the visa.

9. I noted to the applicant that on his application form he had ticked a number of responses, including that he was waiting for a decision on a visa from the department or tribunal, that he had sought or were seeking ministerial intervention, that he had sought judicial review but this had been completed, but that he was subject to other proceedings, and that he was making arrangements to depart Australia. I noted that he had detailed his fears of returning to Sri Lanka and said he could not proceed to Sri Lanka. He enclosed a request for ministerial intervention addressed to the Immigration Minister in which he sought the Minister’s intervention because he was afraid to go back to Sri Lanka and was the carer for his cousin who had a range of medical conditions. Included was also a reference letter from the parish priest of [Name] Catholic Church.

10. At the hearing the applicant also presented a bundle of documents. These included documents and new reports relating to the applicant’s claimed concerns with return to Sri Lanka, letters, declarations and documents relating to the medical conditions of his cousin and the applicant’s role as his cousin’s carer.

11. I asked the applicant to tell me which ground or grounds he believed he satisfied. He said that the most important reason he had requested the bridging visa was because of his cousin’s condition – if the applicant was not with his cousin in the community there would be no one there to take care of his cousin. He said that another important reason was that he left Sri Lanka in fear of his life, and the conditions had changed recently in his country meaning that his life would now be jeopardised. He said that for these two reasons he was seeking to re-request Ministerial Intervention.

12. I asked the applicant if he had previously applied for Ministerial Intervention. He said that he had, in the 7^th or 8^th month he had requested the Minister to show compassion, but that was when the previous government was in power in Sri Lanka. For the avoidance of doubt, given he had not provided the delegate’s decision, I also put to him information from the delegate’s decision that he had previously sought the intervention of the Minister and the Minister and this had been declined. The applicant agreed with this information but reiterated that he needed to re-submit an application for Intervention.

13. I explained again to the applicant that the provisions allowed a person seeking Ministerial Intervention to be granted a bridging visa only if they had not previously been granted a bridging visa. He said that despite this he wanted to go to the Minister on the basis of s.48B and have the Minister lift the bar so the applicant could apply for a further protection visa. I explained again that if this was a subsequent application for Ministerial Intervention, it may not meet the relevant criterion for the grant of the bridging visa. The applicant noted that this put him in an invidious position – he had no choice but to pursue any avenue to not return to Sri Lanka, and he could therefore not be released from detention. He said that he believed his situation in regards to Ministerial intervention had changed very significantly.

14. I told him that I understood his position that he feels he has no choice but to seek Ministerial Intervention. I asked the applicant if there was any other ground he believed he could satisfy. He referred to the situation of his cousin again. I noted that I sympathised with the situation of his cousin and the applicant but that I was not sure this constituted a ground for the grant of the visa. He said that at the moment he had no other ground other than requesting Ministerial Intervention on compassionate grounds.

15. I confirmed with the applicant applicant that he was not considering or making arrangements to depart Australia and he said he could not. He confirmed that he did not have any judicial review or other proceedings on foot.

16. I asked the applicant if the documents he had submitted at the hearing had any bearing on his claims and he said they demonstrated why he could not return to Sri Lanka and that he needed to be released to care for his cousin.

17. I noted that for the reasons we had discussed these may not constitute grounds for the grant of the visa. The applicant indicated he understood but said that I was looking at a very narrow aspect of grounds and there were a lot of compassionate reasons to grant the bridging visa. I noted that the applicant needed to satisfy a ground for the grant of the visa, and that if he did not I may have to affirm the refusal of the visa. He indicated he understood.

18. I then discussed with the applicant his request for an adjournment to provide document. He confirmed that these documents included further information about the situation of his cousin, including medical records from hospital. I explained to the applicant that as we had already discussed, I could not see how the situation of his cousin and the applicant’s need to care for his cousin could constitute a ground for the grant of the bridging visa, and on this basis that I was not minded to provide an adjournment. The applicant indicated he understood. I noted that this meant I would make a decision shortly after the hearing. The applicant did not request a further adjournment.

    Consideration and findings

19. I have looked carefully at what the applicant told me and the materials he has provided. I have decided not to provide an adjournment for him to provide further materials because I am satisfied that these relate to the health of his cousin and the applicant’s role as his cousin’s carer and that these documents will not affect the outcome of this decision.

20. 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.

21. In this case, the applicant is seeking to meet cl.050.212(5B) or (6). The applicant does not claim to meet any of the other alternative criteria in cl.050.212, nor is there any information before me that would support the applicant meeting any other ground. For the reasons below, the applicant does not meetcl.050.212.

22. 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.

23. 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. _

24. I find, on his evidence and the information from the Departmental decision that I put to him pursuant to s.359AA, that the applicant made a previous, unsuccessful application for Ministerial Intervention in 2019.

25. I do accept that the applicant has or will make a Ministerial Intervention request. However, on the basis of the above finding, this will be a subsequent Ministerial Intervention request under s.48B. The provisions are clear that any earlier request for Intervention under either s.48B or one of the other Ministerial Intervention provisions, will preclude an applicant from being granted a bridging visa on the basis of making a subsequent or repeat application for Ministerial Intervention.

26. In this case, the evidence is clear that the applicant is making or will make a Ministerial Intervention request having previously made such a request. This being the case, the applicant cannot meet cl.050.212(5B) or (6).

27. The applicant was clear that this was the only basis on which he was seeking to meet the grounds for the grant of a bridging visa. He was clear that he was not making arrangements, nor would be agree to, depart Australia. He was clear that he was not the subject of any judicial review or other proceedings. There is no basis to conclude that he meets any of the other enumerated grounds in cl.050.212.

28. Accordingly, the applicant does not meet cl.050.212.

    Conclusions

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

30. 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

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

    Sean Baker
    Member