2016603 (Migration)

[2020] AATA 5870

2016603 (Migration) [2020] AATA 5870 (24 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2016603

MEMBER:Jennifer Cripps Watts

DATE:24 November 2020

PLACE OF DECISION:  Sydney, New South Wales

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

Statement made on 24 November 2020 at 6:21pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – substantive visa application – long and technical visa history – exhausted all options to make an onshore partner visa application – Condition 8503 waiver request unsuccessful – acceptable arrangements to depart Australia – genuine intention to depart Australia – internally inconsistent information – no inquiries made about departing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48B, 73, 195A, 359AA, 501
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212; Schedule 8, Condition 8503

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 (the delegate) 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 9 November 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 12 November 2020 on the basis that the applicant did not meet cl.050.212(2) or (3) (attached to this decision) because the delegate was not satisfied that the applicant was making, or was the subject of, acceptable arrangements to depart Australia, and he had not applied for a substantive visa that can be granted in Australia.

4. The hearing was scheduled to account for a four hour time difference between the Australian east coast and Christmas Island.  The applicant appeared, by video from Christmas Island (at 10:30am), before the Tribunal, in Sydney (at 2:30pm), on 23 November 2020 to give evidence and present arguments.  The Tribunal also received oral evidence by phone from the applicant’s wife, father and brother; respectively, [Ms A], [Mr B] and [Mr C].  

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.  Occasional clarification was sought throughout the hearing, which is not unusual in migration hearings where all participants do not speak a common first language and, particularly, where the hearing is a video hearing.  The Tribunal inquired, and is satisfied, that all those who participated in the hearing communicated effectively with each other.

6. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal has considered information material to the issue/s on review, including from the Department and Tribunal files, together with oral evidence given by the applicant and his witnesses at the hearing on 24 November 2020 and oral submissions made by the applicant’s migration agent.

9. The applicant applied for the Bridging Visa E (BVE) that is the subject of the review on 9 November 2020.  In the Form 1211 ‘Record and notice of decision’ provided by the applicant, it is included that the applicant was interviewed on 11 November 2020.  The Subclass 050 BVE application that is the subject of this review was made on the ground that the applicant would apply for a substantive visa:  cl.050.212(3).  It is included in the delegate’s decision that they also considered whether the applicant met cl.050.212(2).

10. This case has a long history, including many applications, grants and refusals for a number of visas including a protection visa that was refused in 2014 and affirmed in 2015 (differently constituted), and various applications made to the Minister that were not considered or were not referred, or were otherwise unsuccessful.  The applicant has been granted several BVE‘s over the course of his residence in Australia, from the time of his last arrival in November 2013 holding a Subclass 600 visitor visa. 

11. The applicant has had a ‘no further stay’ 8305 condition attached to his visas since the end of 2013, other than for the period he applied for a protection visa in 2014/2015 that was not granted and affirmed on review.  At the time of this decision, in summary, having raised the relevant applications, the applicant does not meet s.195A guidelines and has had the condition 8503 (no further stay) waiver refused twice, most recently on 2 November 2020.  The applicant made s.48B request in December 2018 which was also unsuccessful.  In summary, relating to s.48B, the applicant is prevented from making a further protection visa application in the migration zone (as defined).

12. The applicant applied for the BVE on the ground that he had made or would make a substantive (partner) visa application.  However, the applicant is not entitled to apply for a partner visa onshore for the reasons given above.

13. It is acknowledged by the Tribunal that it appears that the applicant’s long and fairly technical visa history has caused him some confusion as to whether or not he had applied for a partner visa at any time while onshore.  This was not helped by his claim that a former migration agent told him he had made a partner visa application about four or five years ago, which turned out not to be the case. 

    The issue on review

14. The issue in this case is whether the applicant meets the primary criteria for the grant of the visa at the time of the Tribunal’s decision. 

15. In this case, the applicant attended the hearing seeking to meet cl.050.212(2) and (3).  

16. For the reasons below, the applicant does not meet cl.050.212.

    The Tribunal hearing on 23 November 2020

17. The applicant had made the BVE application on the ground that he would make a partner visa application onshore and would therefore meet cl.050.212(3).

18. It is not now, at the time of this decision, in dispute that the applicant has never made a partner visa application, either onshore or offshore.  In addition, the Tribunal is satisfied that the applicant understands he cannot, and is not entitled to, make a partner visa application onshore.  The Tribunal is satisfied this is the case on the basis that it was explained to the applicant at the Tribunal hearing on 23 November 2020, at the request of his migration agent, [Ms D].  The Tribunal is satisfied, after it was explained to the applicant at the hearing, in plain language, that he had exhausted all his options for applying for a partner visa onshore and that he must make the partner visa application offshore, and that the applicant indicated that he understood and accepted this.

19. In considering whether the Tribunal could be satisfied that the applicant would meet cl.050.212(2), appropriate and relevant questions were put to him including whether the applicant has a passport or ticket for travel.  Before considering these issues, [Ms D], who, it is acknowledged by the Tribunal was only brought into the matter a day or two before the hearing, provided a summary of matters relating to the applicant’s visa situation.  [Ms D] told the Tribunal she had been involved in assisting both the applicant and his wife with their visa problems over the last year or so and provided the history of their issues relevant to the review, which was very helpful.

20. The Tribunal was told that after the applicant had been detained at [an Immigration Detention Centre], about 12 months ago the applicant’s wife and the applicant’s stepmother came to her ‘with an enormous pile of documents’, which included information relating to a previous BVE application.  There was information contained in the papers presented that appeared to suggest the applicant had been told, by a former migration agent, that a partner visa application had been lodged for him about four or five years ago, which turns out not to have been the case.

21. Relating to the previous BVE refusal review application, Tribunal matter 1812929, it is acknowledged, and has been confirmed by the Tribunal, that the applicant appeared before the Tribunal on 9 May 2018, and that oral evidence was also taken from the applicant’s wife ([Ms A]).  It is included in the Tribunal’s decision, made on 15 May 2018 (differently constituted), that the applicant ‘claimed that he had applied for a Partner visa about two years ago’, and that the applicant’s (former) migration agent said at the hearing that the applicant had not lodged a partner visa application because ‘he was subject to condition 8503 and was seeking a waiver of that condition’.  While the information is inconsistent on this point, the Tribunal considers it possible, or at least likely, that the applicant thought he had lodged a partner visa application, in the circumstances.

22. At the Tribunal hearing in the current matter, [Ms D] went on to say that she has met with the applicant and his wife on several occasions, including at the [Immigration] Detention Centre, when the applicant was detained there.  [Ms D] said that following meetings with the applicant and his wife, prior to COVID-19 restrictions being put in place, they were provided with written advice by her, including:

    ·The applicant could not lodge a partner visa application in Australia unless the ‘no further stay’ 8503 condition was waived

    ·If the 8503 waiver was unsuccessful, the applicant would need to go offshore to lodge the partner visa application

    ·Relating to 501 character implications and what that would mean for the partner visa application

23. [Ms D] said that, on the applicant’s instructions:

    ·An 8503 waiver request was lodged in early 2020, and the applicant was notified on 2 November 2020 that condition 8503 had not been waived (decision provided)

    ·A request was also made to the Minister to get a residence determination, which was also unsuccessful

    ·She assisted him lodging a BVE application in May 2020, at his request, which was later withdrawn 

24. [Ms D] informed the Tribunal that after the unfavourable outcomes were notified on 2 November 2020, relating to the 8503 waiver request and residence determination, she subsequently wrote to the applicant and his wife expressing the opinion that the applicant had no further action in Australia and that he should consider departing and applying for the partner visa offshore. After this, the applicant lodged the BVE application that is the subject of this review on 9 November 2020.

25. While this history has put the applicant’s situation in perspective, it is not material to the issue of whether he meets cl.050.212(2).

    Acceptable arrangements to depart Australia

26. 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]).

27. The Tribunal was provided with a copy of the identity page of the applicant’s passport, issued [in] 2016 and expiring [in] 2021.  The applicant gave evidence that it is currently held by Immigration.  It is accepted that the applicant has an appropriate travel document for international travel up to [early] 2021. 

28. The applicant gave internally inconsistent information about his intentions relating to whether or not he genuinely intends to depart Australia to lodge a partner visa application.  He has said, variously, during interviews and at the Tribunal hearing, that he will not depart Australia and that he will depart Australia.  At the Tribunal hearing, the applicant said that if he was guaranteed to be granted a partner visa if he lodged an offshore application he would depart, but that if there was no guarantee he would be granted the visa, he would not depart.  He claims to be only intending to act lawfully.

29. The applicant gave evidence that he ‘promise(s)’ to depart and lodge the application offshore.  He gave oral evidence that he intends to take his wife and children with him to wait for the visa to be processed.  When asked how he would support his family in Lebanon, he said ‘that’s what I’m scared of and clarified this to mean that his father and brother would support him and that he would try to find work in Lebanon.  There appears to be no reason why the applicant would not be able to lodge a valid partner visa application offshore.  He has expressed concern that, due to his criminal history in Australia, he may have problems with character assessment (cl.501 of the Act) relating to the application.  It has been submitted that the crimes for which he was convicted and sentenced were at the lower end of the scale.  The Tribunal is prepared to accept the submission that the offences are not in the most serious category of offending, such as violent, sexual or drug offences.  However, this is not a matter that is material to the issue/s on review.  If the applicant lodges a partner visa application, it will be for the Department to assess the applicant relating to the s.501 character requirements. 

30. It is acknowledged, as claimed, that the applicant would be concerned or ‘scared’ for himself and his family if they were residing in Lebanon, in their personal circumstances, waiting for the partner visa application to be assessed.  The applicant himself has not resided in Lebanon for a number of years and, although his mother lives there, the applicant’s father and brother live in Australia. 

31. What is of significant concern, however, is that when the applicant’s wife gave her oral evidence, she said that both their children are sick and require hospitalisation fairly regularly, particularly the little boy, who is [number] years of age.  The applicant’s wife said that their son is very sick, gets bad infections and he ‘couldn’t go’ to Lebanon.

32. In addition, there is evidence before the Tribunal, provided by the applicant, that his wife suffers from various medical conditions.  It is accepted that the applicant’s wife, and his children, all have medical conditions for which they are regularly treated in Sydney and that they would simply not be in a position to accompany him offshore, given their medical history and the potential for finding themselves living in a country where continued and appropriate medical services specific to them may not be available.

33. This adverse information, that is the inconsistencies relating to whether or not the applicant’s wife and children would accompany him to Lebanon, was put to the applicant at the hearing.  The Tribunal observed its obligations under s.359AA of the Act.  The information was particularised and reasons given why the information would be a reason or part of the reason for affirming the decision to refuse the visa.  The applicant was asked if he wished to comment or respond at the hearing and request more time, or if he wished to speak in private to his migration agent.  The applicant responded at the hearing and said that if would help he would book an airline ticket, pay a security and that he does not want to do anything that is against the law.

34. The applicant’s response and evidence relating to those matters has been considered.

35. It is acknowledged that there is currently a pandemic limiting international travel and, in addition, that there was a catastrophic explosion in Beirut in August 2020 and that people were killed, others were injured and that many people were left homeless.  It is acknowledged that the applicant said at the hearing that if he had been there with his family at the time they would have been killed and it is accepted by the Tribunal that this is likely to be a genuinely held belief.

36. There is no evidence before the Tribunal that the applicant, other than having conferred with his father and brother relating to financial assistance, and their oral evidence that they intend to support him, has made any inquiries about departing, checked whether he can travel from Australia to Lebanon during the COVID-19 pandemic, or whether he has made any inquiries or arrangements in Lebanon regarding support or accommodation. 

37. It is acknowledged by the Tribunal that the applicant said at the hearing he just wants to be given a few months to spend with his wife and children before departing.  It is acknowledged that the applicant offered to buy an airline ticket if it would be helpful.  However, the purchase of an airline ticket does not necessarily mean a person will use it and, for that reason, in this case, the Tribunal is not satisfied that the purchase of an airline ticket by the applicant would indicate he was making, or was the subject of, acceptable arrangements to depart Australia. 

38. The applicant has not satisfied the Tribunal that he has made any genuine attempts or inquiries relating to departure arrangements and considers that his claim that he will meet cl.050.212(2) is being made because he perceives it to be his best and last option to return to live with his family in Sydney. 

39. For these reasons, the Tribunal is not satisfied that the applicant meets cl.050.212(2).

40. The applicant does not have a substantive visa application, specifically a partner visa application, undecided, and nor can he apply for one in the circumstances that have been described earlier.  For these reasons, the Tribunal is not satisfied the applicant meets cl.050.212(3).

41. The delegate did not make a decision relating to requiring security.  At the Tribunal hearing, the applicant submitted that he would be willing to provide security if his matter is remitted on the basis that he meets cl.050.212(2) on departure grounds.  The applicant gave oral evidence that his father and brother, [Mr B] and [Mr C], who both live in Australia, would provide security.  They both gave oral evidence at the hearing and said, essentially, that they would do whatever it takes to assist the applicant. 

42. On the basis that the Tribunal is not satisfied the applicant meets cl.050.212(2) and does not therefore meet the primary criteria, cl.050.212(6A) and (8) are not applicable.

43. The applicant does not claim to meet any of the other alternative criteria in cl.050.212.

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

    DECISION

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

    Jennifer Cripps Watts
    Member

    
    

    ATTACHMENT 1

    Schedule 2 to the Migration Regulations 1994 (extract)
    Subclass 050 – Bridging (General)
    050.212(1)-(3)

    050.212 

    (1)The applicant meets the requirements of subclause (2), (3), (3A), (4), (4AAA), (4AA), (4AB), (5), (5A), (5B), (6), (6AA), (6A), (6B), (7), (8) or (9).  

    (2)An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

    (3)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 that application has not been finally determined; or

    (b)the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.

    …