2107668 (Migration)

[2021] AATA 2486

2107668 (Migration) [2021] AATA 2486 (21 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2107668

MEMBER:Alison Murphy

DATE:21 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 21 June 2021 at 4:39pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – grounds for seeking visa and intention to abide by conditions – no ground specified in visa application – no plans to depart Australia and previously stated intention to remain – stated intention to pursue protection visa application even though tribunal and court reviews of protection visa refusal finalised – three periods as unlawful non-resident – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 376
Migration Regulations 1994 (Cth), cls 050.212(2), (3A), 050.221(2), 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 applied for the visa on 9 June 2021. 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 and cl.050.223.

3. The decision to refuse to grant the visa was made on 11 June 2021 on the basis that the delegate was not satisfied the applicant met any of grounds for seeking the visa set out in the time of application criteria set out in sl.050.212, nor that he would abide by the conditions imposed on the visa as required by cl.050.223.

4. The applicant appeared before the Tribunal on 21 June 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. As the applicant was in immigration detention on Christmas Island and no video conference facilities were available at the detention centre, the hearing took place by telephone.

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

   Non-disclosure certificate

6. The Tribunal has before it an electronic version of the departmental file relating to the refusal of the bridging visa. The delegate has placed restrictions on one of the documents contained in that file by issuing a certificate under s.376 of the Act. That certificate is dated 18 June 2021 and certifies that disclosure of folio [Number] would disclose, or enable to a person to ascertain the existence or identity of, a confidential source of information where information was provided ‘in confidence’ and the provider of the information has not consented to the disclosure of the information to the review applicant. A copy of that certificate was provided to the applicant prior to the hearing.

7. Where a certificate is issued under s.376, the Tribunal may have regard to any matter contained in the document or the information and, if it thinks it appropriate to do so, disclose any matter contained in the document or the information to the applicant or any other person who has given oral or written evidence to the Tribunal.

8. The s.376 certificate dated 26 April 2021 appears to be valid on its face. The material covered by that certificate relates to the applicant’s criminal history, a summary of which is contained in the delegate’s decision. At hearing the applicant gave evidence as to the circumstances in which those criminal matters arose, acknowledging each of the matters listed in the delegate’s decision. As I am satisfied that the gist of the information has been disclosed to the applicant and the applicant does not dispute the summary of his criminal history set out in the delegate’s decision, I have decided not to exercise my discretion to further disclose the document or its contents.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant meets the grounds for the grant of the visa and if so, whether the Tribunal is satisfied that the applicant will comply with conditions it considers appropriate to impose on the visa if a visa were to be granted.

   The grounds for seeking the visa - cl.050.212

10. 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.

11. In this case, the applicant has not specified in his visa application which of these criteria he claims to meet. The delegate noted in the decision record that the applicant did not address the criteria set out in cl.050.212(2)-(9), other than advising that he wished to take his application for a protection visa further, to the High Court of Australia and to the Minister. The delegate went on to assess the applicant against the criteria set out in cl.050.212(2).

12. At hearing before me, the applicant said that he wished to be granted a bridging visa so that he could fight in court for his protection visa and that if there were no other option, he would make arrangements to depart Australia. He did not claim to meet any of the other alternative criteria set in cl.050.212 and I have assessed him against the criteria set out in cl.050.212(2) and cl.050.212(3A). For the reasons below, the applicant does not meet cl.050.212.

    Acceptable arrangements to depart Australia

13. 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. The delegate records in her decision (a copy of which was provided to the Tribunal by the applicant) that the applicant stated that he cannot return to India as he was the [official] of the [Organisation] and was involved in fights and he also faces harm from his ex-wife’s family. The delegate records that the applicant has previously stated to Departmental staff he does not intend to return to India and has confirmed again he will not depart Australia.

14. In the decision record the delegate also noted that the applicant had had three periods of remaining in Australia unlawfully without a valid visa and had not updated the Department of his change of address when he moved to [Town]. At hearing the applicant told me he had only gone to [Town] temporarily and expected his friends to let him know if he received any letters from the Department but they didn’t. He said he forgot to update his address and regularise his visa status but he had learned his lesson and would not do so again.

15. At hearing the applicant initially confirmed that he had no plans to depart Australia telling the Tribunal that his family are all here in Australia, he has been here for 12 years and he has nothing back in India. He said that he wanted to stay in Australia so that he could fight his case for a protection visa before the courts. It was only when I pointed out to him that it appeared the Australian courts had already finalised his application for review of the decision relating to his protection visa that the applicant suggested that if he was granted a bridging visa and able to leave detention, he would seek legal advice and depart Australia if there were no other options.

16. The applicant’s visa history speaks against his claims that he will depart Australia if he has no other legal options. He has clearly stated on several occasions that he has no intention of departing Australia voluntarily including to the delegate and the Tribunal. He has previously remained in Australia on three occasions without a visa and failed to notify the department of his change of address. On the evidence before me, I do not accept the applicant intended to voluntarily depart Australia at the time he applied for the visa, nor do I accept he has any current intention to make arrangements to depart Australia. Accordingly, he does not meet cl.050.212(2) or cl.050.221(2).

    Judicial review – onshore substantive visa refusal

17. Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.

18. The delegate noted in the decision record that the applicant had no current or ongoing visa applications before the Department, the Tribunal or Australian courts as his previous applications for a skilled visa and a protection visa have already been finally determined.

19. At hearing the applicant stated that he wished to be granted the bridging visa so that he could fight his case for a protection visa before the courts. I discussed with the applicant that it appeared his review applications had already been completed and he did not have any judicial review proceedings on foot. The applicant did not disagree with that but told the Tribunal that he wished to get a lawyer to fight for his protection visa.

20. The delegate’s decision records that the applicant lodged an application for a Protection (Class XA) visa on 18 February 2014 and a decision was made by a delegate of the Minister to refuse to grant him that visa on 1 July 2014.  The applicant sought a review of that decision from the Refugee Review Tribunal and a member of that Tribunal affirmed the delegate’s decision [in] January 2016.  The applicant sought judicial review of the Tribunal’s decision and it was dismissed by the court [in] November 2019. There are no further proceedings on foot relating to either the protection visa application or the earlier skilled visa application and I find that the judicial review proceedings have been completed.

21. On that basis the Tribunal finds that at the time of application, the applicant did not meet the criteria set out in subclause 050.212(3A).

    Other grounds for the grant of a visa

22. The applicant does not claim to meet any of the other alternative criteria in cl.050.212. As a consequence he does not satisfy any of the grounds set out in cl.050.212 and therefore cannot be granted a Subclass 050 visa.

23. 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

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

    Alison Murphy
    Member