2007324 (Migration)

[2020] AATA 2188

2007324 (Migration) [2020] AATA 2188 (28 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2007324

MEMBER:Ann Duffield

DATE:28 April 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 28 April 2020 at 2:39pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Ministerial intervention grounds – two previous requests – departure grounds – medical care in detention – incentives to depart Australia – acceptable arrangements to depart Australia – passport not renewed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48A, 48B, 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212

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 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 14 April 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 16 April 2020. The applicant sought a bridging visa in relation to an ongoing Ministerial Intervention request. However, this is the applicant’s third request and as such he does not meet the requirements of subclauses 050.212(5B), (6), (6AA) or (6B). These sections do not permit multiple applications of the same request except in certain circumstances which are not relevant to the applicant.

4. The applicant appeared before the Tribunal via telephone on 28 April 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether there are no grounds for the grant of a bridging visa of the type requested.

   The grounds for seeking the visa - cl.050.212

7. 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.

8. In this case, the applicant is seeking to meet cl.050.212 which relate to the provisions whereby Ministerial Intervention can be considered. The applicant does not claim to meet any of the other alternative criteria in cl.050.212.  For the reasons below, the applicant does not meet cl.050.212.

   Ministerial intervention

9. 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.

10. The applicant has already made two previous requests therefore he does not meet the requirements of this subclause.

11. 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. _

12. This is the applicant’s third request for ministerial intervention; the first time was on 21 December 2011 – this matter was finalised on 17 April 2012 as “not considered”. The second application for Ministerial intervention was made by the applicant on 21 July 2016 and this was finalised on 1 August 2016 as “not referred”.

13. The applicant therefore does not meet this subclause.

14. 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.

15. This does not apply in the applicant’s case. The Minister has not intervened in either of the applicant’s two previous requests to grant the applicant a visa.

16. 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).

17. The applicant’s previous requests for Ministerial Intervention were not made prior to July 2009 and in any case he does not hold a bridging visa in relation to those previous and current requests for Ministerial Intervention. Therefore the applicant does not meet the requirements of this subclause.

    Subclause 050.212(2) – the applicant is making acceptable arrangements to depart Australia.

18. In a submission to the Tribunal on 27 April 2020 the applicant has indicated that he wishes to be granted a Bridging Visa on departure grounds. The applicant has claimed that he will be making arrangements to depart Australia once he can approach the Chinese Consulate to apply for a new passport and the travel ban is lifted. He claims he will then book his flight back to his hometown of Fujian Province in China.

19. The applicant further claims that he has had to have a [medical procedure] whilst in detention and believes that he will receive better care in the community. He has however stated that he was able to receive relevant health care [whilst] he was in detention and there is no evidence to suggest that he would not be able to affect a proper recovery whilst detained. The Tribunal understands that it may be the applicant’s preference to recover in the community, however there is no evidence that he will not make a similar proper recovery whilst detained.

20. The Tribunal discussed this matter with the applicant during the hearing. The applicant told the Tribunal that he can’t get appropriate care in detention and the Tribunal asked why he believed that to be the case given that he appeared to have been provided with appropriate medical care to date in relation to the surgery. The applicant states that his wound has not healed and he goes every day to the surgery at the detention centre. He provided no medical records to support his claims.

21. The Tribunal has no reason to believe that the applicant cannot receive proper care whilst in detention as he has stated that he sees the nurse every day.

22. The Tribunal asked the applicant why it should accept that he would make the necessary arrangements to depart Australia when he had not done so in the past but remained unlawfully in the community for many years. The applicant said that his health is getting worse and he promised his son that he would return to China in October for his wedding.

23. The applicant also claimed that someone owes him money and he needs to settle a car loan. He claims that he wants to settle his financial matters before he leaves. The Tribunal asked he applicant why he couldn’t attend to these matters whilst he was detained. The applicant claimed that he needs to see those people in person so they can repay the debt. Asked why he needed to see them in person he claimed that those people are worried if they give the money to his friend then it won’t get to him. The Tribunal put to the applicant that his debtors could put the money directly into his bank account. The Tribunal does not accept that the applicant cannot settle his financial affairs whilst detained.

24. The Tribunal questioned the applicant about the attempts he has made in relation to renewing his passport and he claims that he has not approached the embassy. The Tribunal asked if the applicant had any other submissions to make in relation to his application for the visa on the basis that he will depart Australia. He says that he has already asked his friend to sell his car.

25. There is no evidence before the Tribunal that the applicant has made acceptable arrangements to depart Australia. On his own admission he does not have a valid passport and claims that he has not approached the Chinese Embassy to renew his passport.  It is not clear to the Tribunal why it would be easier for the applicant to apply for a renewal of his passport if he is in the community as opposed to remaining in detention. These applications can easily be made online.

26. The Tribunal understands that the applicant may be detained for a period of time before he is able to return to China, however there is no evidence before the Tribunal that the applicant would not be able to seek the assistance of his own government in making proper and timely arrangements to depart Australia in due course.

27. The Tribunal put to the applicant that on the basis of the information he had provided he was not currently making arrangements to depart Australia and it could therefore not make a positive finding. For example, the Tribunal put to the applicant that he had not even approached the Chinese Embassy. The applicant said that given his current circumstances regarding his health he could not do so and did not have the phone number for the Chinese Embassy. He said that the police stopped him unexpectedly and he couldn’t make the arrangements.

28. The Tribunal notes that the applicant has was granted a Bridging Visa on departure grounds in 2016 however he did not depart but instead became an unlawful non-citizen and concealed himself in the community. He did not attempt to regularise his status or approach the department, instead coming to their attention in November 2019 when he was arrested for driving an unregistered vehicle. The Tribunal asked the applicant why he had not departed Australia when he was granted a bridging visa in July 2016 but instead decided to live unlawfully in the community. The applicant told the Tribunal that the contract for the work he was doing was not finished.

29. The evidence before the Tribunal strongly suggests that the applicant will again conceal himself in the community and that he will not attempt to depart regardless of whether or not the impositions associated with the COVID-19 lockdown exist or not or any other circumstance. In relation to the former matter, despite encouragement, the applicant did not mention any concerns in relation to the impositions made by the present response to COVID-19.

30. Accordingly, the applicant does not meet the requirements of cl.050.212.

    DECISION

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

    Ann Duffield
    Senior Member