2013242 (Migration)

[2020] AATA 4174

2013242 (Migration) [2020] AATA 4174 (31 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013242

MEMBER:Nathan Goetz

DATE:31 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 31 August 2020 at 10:56am

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful Non-Citizen – outstanding request for Ministerial Intervention– applicant has made two requests for Ministerial Intervention – no grounds for the applicant to be granted a bridging visa – extensive criminal history –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 48, 73, 189, 345, 351, 417
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 050.223

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 claims to be a citizen of India.

3. [In] May 2011 the applicant arrived in Australia on a student visa. This student visa was cancelled on 6 October 2011. On 6 October 2011 the applicant was granted a bridging visa to regularise his migration status as he indicated that he was going to apply to the Tribunal for a review of the cancellation decision. On 12 October 2011 the applicant applied to the Tribunal for the review. On 18 October 2011 he was granted a bridging visa in connection with his review application.

4. On 28 November 2012 the Tribunal affirmed the decision to cancel the applicant’s student visa. On 4 January 2013 the bridging visa connected to the review application ceased.

5. On 25 January 2013 the applicant sought the Minister to intervene under s.351 of the Act. This section allows the Minister to substitute a decision made by the Tribunal on review with a decision that is more favourable to the applicant. On 10 December 2013 the request for intervention was finalised as ‘not considered’.

6. On 9 January 2014 the applicant was granted a bridging visa on the basis that he would apply for a substantive visa. On 16 January 2014 the applicant applied for a protection visa. On 17 January 2014 the applicant was granted a bridging visa associated with his protection visa application. On 19 February 2014 the protection visa was deemed invalid.

7. On 18 March 2014 the applicant was granted a bridging visa on the basis that he would apply for a substantive visa. On 19 March 2014 the bridging visa associated with the invalid protection visa application ceased.

8. On 29 April 2014 the applicant applied for a protection visa. On 19 May 2014 the applicant was granted a bridging visa associated with his protection visa application. On 27 March 2015 the protection visa application was refused. On 2 April 2015 the applicant applied to the Tribunal for a review of the refusal decision. On 30 March 2016 the Tribunal affirmed the refusal decision. [In] April 2016 the applicant lodged judicial review proceedings in the Federal Circuit Court against the Tribunal decision. [In] June 2017 the Federal Circuit Court dismissed the judicial review proceeding.

9. On 24 July 2017 the applicant sought the Minister to intervene under s.417 of the Act. This section allows the Minister to substitute a decision made by the Tribunal on review with a decision that is more favourable to the applicant. On 7 August 2017 the request for intervention was finalised as ‘not considered’.

10. On 8 August 2017 the applicant was given a bridging visa to depart Australia. On 18 August 2017 the applicant requested that condition 8503 on his bridging visa be removed so he could commence a tourist visa application.

11. On 21 August 2017 the applicant lodged an application New Zealand (Family Relationship) visa.

12. On 22 August 2017 the request for the removal of condition 8503 from the bridging visa was deemed invalid. The same day, the applicant was granted another bridging visa on departure grounds.

13. On 23 August 2017 the application for a New Zealand (Family Relationship) visa was deemed invalid because the applicant was prohibited under s.48 of the Act from lodging this visa while onshore.

14. On 25 August 2017 the applicant applied for a medical treatment visa. The applicant applied for a bridging visa in connection with this application. On 31 August 2017 the application for a medical treatment visa was refused. On 8 September 2017 the applicant applied to the Tribunal for a review of the decision to refusal the medical treatment visa.

15. On 12 October 2017 the applicant lodged a bridging visa in connection with the review of the decision to refuse to grant him a medical treatment visa.

16. On 13 October 2017 the application for a bridging visa connected to the medical treatment visa application was refused.

17. On 20 October 2017 the application for a bridging visa in connection with the review of the decision to refuse the medical treatment visa was refused.

18. On 9 May 2018 the applicant was granted a bridging visa on the basis associated with the Tribunal review of the decision to refuse to grant him a medical treatment visa.

19. On 7 September 2018 the Tribunal affirmed the decision to refuse to grant the applicant a medical treatment visa. [In] September 2018 the applicant lodge judicial review proceedings in the Federal Circuit Court against the Tribunal decision.

20. On 5 October 2018 the applicant was granted a bridging visa associated with the judicial review proceedings. On 9 October 2018 the bridging visa was considered for cancellation, but a decision was made not to cancel the bridging visa.

21. [In] January 2020 the Federal Circuit Court dismissed the judicial review proceeding. On 28 February 2020 the associated bridging visa ceased. Consequently, the applicant became an unlawful non-citizen because he no longer held a bridging visa. [In] March 2020 the applicant was located by Department officials and detained under s.189(1) of the Act because he was an unlawful non-citizen.

22. On 3 April 2020 the applicant applied for a bridging visa. On 8 April 2020 this was refused.

23. On 6 May 2020 the applicant applied for a bridging visa. On 11 May 2020 this application was deemed invalid.

24. On 15 May 2020 the applicant applied for a bridging visa. On 29 May 2020 this application was refused.

25. On 13 July 2020 the applicant applied for a bridging visa. On 15 July 2020 this application was refused.

26. On 20 August 2020 the applicant applied for a bridging visa. On 24 August 2020 the delegate refused to grant the bridging visa. On 25 August 2020 the applicant applied to the Tribunal for a review of this refusal decision. It is this refusal decision that is being considered by the Tribunal.

27. At that time the applicant applied for the bridging visa, 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).

28. The delegate indicated that the applicant satisfied clause 050.212(2) of the regulations as he was ‘making, or is the subject of, arrangements to depart Australia. However, the delegate was not satisfied that the applicant met cl.050.223. That is to say, the delegate was not satisfied that the applicant would abide by the conditions that would be imposed on the bridging visa.

29. The applicant appeared at the Tribunal on 31 August 2020 by audio-visual link from an immigration detention centre to give evidence and present arguments.

    CONSIDERATION OF CLAIMS AND EVIDENCE

30. The applicant provided the Tribunal with the Record and Notice of Decision made by the delegate. He also provided the Tribunal with a document where he requested that the Minister for Immigration grant him a visa on compassionate/humanitarian grounds considering his circumstances.

31. The delegate decision notes that the applicant’s bridging visa application is made on the grounds that he is seeking Ministerial Intervention. The delegate notes that evidence of this request was sighted and that ‘as this request for the Minister is a subsequent for the Minister, an assessment will be made on grounds of Departure’. The delegate noted that the Ministerial Request was not yet recorded on the Department records but accepted that the request had been made. For the sake of completeness, the Tribunal acknowledges that the applicant provided the Tribunal with email confirmation that the Minister had received his request on 11 August 2020.

32. The Tribunal is satisfied that the document addressed to the Minister for Immigration that was provided by the applicant is the Ministerial Intervention request being referred to. It is clear from the delegate decision that the delegate found that the applicant could not meet cl.050.212(6), (6AA) or (6B) which provide a ground for seeking the bridging visa on the basis of an outstanding Ministerial Intervention request, so the delegate decided to assess the ground for the bridging visa on the basis that the applicant met cl.050.212(2), namely that he was applicant is making, or the subject of, acceptable arrangements to depart Australia. This was despite the applicant not claiming to meet this clause. As noted in the bridging visa application form at Question 9, the applicant selected ‘Ministerial Intervention’ as the most appropriate ground for seeking the bridging visa. At Question 14, he specifically wrote that he was not making arrangements to depart Australia.

33. In the bridging visa application form, the applicant provided the following additional information at Question 15:

    “Please issue me visa so I can sort out my visa. Since I am in detention my partner’s mental health getting worse every day. 3 little kids getting effected as well. So please issue me visa so I can see my child. I have court access visit to him. I haven’t visit him since whole year. I have applied for Ministerial Intervention to issue me visa on compassionate humanitarian grounds”.

34. In Question 22, the applicant indicated that he had been charged with an offence that is currently waiting legal action. He detailed this as common assault and that he had outstanding debts to the Australian Government / a public authority in Australia. He wrote that he would pay that in instalments when he is out of immigration detention. The department records indicated that the applicant has the following outstanding criminal matters listed on the following dates:

35. [November] 2020: Common assault in circumstances of aggravation or racial aggravation

36. [December] 2020: Breach of family violence restraining order.

37. Question 22 also asked the applicant whether he had been previously convicted of any offence. The applicant declared that he had not.

38. The department records note that the applicant has ‘an extensive criminal history dating back to 2010’. The most recent convictions were:

39. [April] 2020: Unlawful possession of a controlled or prescription drug and breach of bail conditions. He was convicted and fined $1100 with court costs of $237.

40. [May] 2020: Drug driving. Convicted and fined $500 with costs totalling $1703.90. His licence was cancelled, and he was disqualified from driving for 6 months.

41. At the Tribunal hearing, the applicant said that prior to going into immigration detention, he resided at [address deleted]. The applicant was asked to clarify his grounds for seeking the bridging visa. The Tribunal explained to the applicant that the bridging visa application involves two steps. The first step was to establish that the applicant satisfies one of the grounds in cl.050.212, such as making acceptable arrangements to depart Australia (cl.050.212(2), or that the applicant had, for example, ongoing migration matters. If the Tribunal was satisfied that the applicant met any of the grounds in cl.050.212, then the Tribunal would consider cl.050.223, namely whether the applicant would abide by the conditions that would be imposed on the bridging visa. The applicant confirmed he understood this.

42. The applicant confirmed that he sought the bridging visa on the basis that he had an outstanding request for Ministerial Intervention. He therefore claimed to meet clause cl.050.212(6).

43. The applicant was also asked whether he had ever previously been convicted of any offence. He told the Tribunal he had. When asked why he declared in the bridging visa application form that he had not, he said that he did not do so because he had not been imprisoned for the offending, which he described as minor.

44. When applying for the review application, the applicant indicated that he sought witnesses to give oral evidence at the Tribunal hearing. The Tribunal advised the applicant that any witnesses he sought to give oral evidence to the Tribunal would first need to provide written statements to the Tribunal. The applicant responded that his witnesses had already done so. The statements were contained in the document he had submitted to the Tribunal.

45. The document contains a nine page submission written by the applicant, as well as various documents related to family law matters and his child, the applicant’s mental health, his involvement with an [organisation], and letters of support from Ms [A] [and various individuals] and a letter from a marriage celebrant indicating that the applicant has lodged a notice of intention to marry Ms [A]. The Tribunal has considered this material but decided not to take oral evidence from any of those witnesses because their evidence was irrelevant to whether the applicant could meet the criteria that was in issue at the Tribunal hearing.

46. The applicant emailed the Tribunal on 28 August 2020 with the following:

    I have attached my bank statement from [a bank] ill also attach [a second branch] where i have more than [amount]  in my account if my Bridgibg visa gets spproove i can support myself while im out i. Community.

    I also have my friends who are Australian Citizen who are willing to provide me ongoing support and care while im outside in Community on bridging visa. As well asmy partner whos Australian Citizen and her whole family willing to provide me support and care while im in Community. [Ms A and others] and many others willing to provide me ongoing care if my visa gets approove while im in Community. I can also visit my son whos [age] years old. NZ citizen born in Australia. I also submitted court orders to the AAT department.

    Plzz help me issue bridging visa my partners mental health is really bad as well as me being in detention 3 kids getting effected. My partner cant look after them properly [Ms A] requires ongoing care and mental support from me .

47. The applicant attached a screenshot of [a bank] account that showed a balance of $[amount].

    FINDINGS AND REASONS

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

49. The issue in this case is whether the applicant has grounds for seeking the bridging visa. This is a different issue to that considered by the delegate, but in the Tribunal’s view, it is nonsensical to consider whether the applicant would abide by conditions on a bridging visa if the grounds for the bridging visa are not met. It is clear from the delegate decision that the delegate was conscious of the fact that the applicant could not meet cl.050.212(6) despite the applicant’s claims that he did.

50. The delegate therefore decided to consider ground in cl.050.212 and chose cl.050.212(2) despite the applicant not claiming to meet this clause, or any other. In the Tribunal’s view, this was not a desirable thing to do. The delegate should have decided whether the grounds for the visa, as claimed by the applicant, existed.

    The grounds for seeking the visa - cl.050.212

51. 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.

52. In this case, the applicant is seeking to meet cl.050.212(6). The applicant does not claim to meet any of the other alternative criteria in cl.050.212 and told the Tribunal that he needed to be granted a bridging visa so he could be in the community and lodge a partner visa application. He had not done so while in immigration detention because he did not do so within the two-day timeframe given to him after he had been detained.

53. 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.

54. The applicant confirmed to the Tribunal that he had made two previous requests to the Minister to intervene, as outlined in his migration history. Both of those requests were unsuccessful. The Tribunal noted that the applicant had made another request to the Minister to intervene and grant him a visa and saw the copy of the email that the applicant sent to the Minister. The Tribunal is satisfied that this request is outstanding.

55. However, as discussed with the applicant, for a request for the Minister to intervene to be a ground for seeking the bridging visa, the applicant must not have previously made such requests. In the applicant’s case, he had done so twice previously.

56. Accordingly, the applicant does not meet cl.050.212(6).

57. There is no evidence that the applicant meets any other subclause of cl.050.212. Therefore, the applicant does not satisfy cl.050.212. There are no grounds for the applicant to be granted a bridging visa, so it is therefore unnecessary to consider whether he would abide by conditions per cl.050.223

    CONCLUISON

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

59. 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

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

    Nathan Goetz
    Member