Background
Background to the litigation
Given the Tribunal’s conclusion that the applicant meets cl.050.212 on the basis of cl.050.212(3)(b), it proceeds to consider the conditions that should attach to the bridging visa, if granted, and whether she would comply with the conditions.Evidence and Background The Tribunal has before it the following relevant material (not exhaustive):§ The bridging visa application lodged online on 20 December 2021. Attached to this was a submission from the applicant’s representative [Ms A], and an undated ‘personal statement’ from the applicant.§ The delegate’s decision record of 23 December 2021, which the applicant provided with the review application. This addresses the primary criteria and some information about the applicant’s activities in Australia. Attached to it is a detailed migration history.§ The review application lodged on 26 December 2021.§ The applicant’s submission to the Tribunal dated 5 January 2022, with attachments (including in the consolidated list below).§ Identity and supporting documents provided to the Department and the Tribunal, indicating that the applicant has formally changed her name in Australia to [Alias 1], but continues to use the name [applicant name] in relation to the PRC authorities.§ A submission from the applicant’s newly appointed representative, [Ms A], dated 10 January 2022.§ Post-hearing submission dated 12 January 2022 with the opinion from barrister [Mr B] on the interpretation of cl.050.212(3)(b).§ On 12 January 2022, [Ms A] advised the Tribunal that the applicant would be prepared to post a security of $,5000 to $10,000, as security to ensure her compliance with the conditions imposed on a Bridging E visa, if granted. The Department file includes other material relating to the applicant’s prior applications and migration history. These include an ABF document ‘Field Operation Located Person Interview’ dated 7 September 2021, and a Detention Client Interview – Part C, dated 18 November 2021, which the Tribunal drew on in a s.359A letter, for comment and response at interview. Other documents, not directly relevant to this review include an earlier bridging visa application dated 16 January 2020, ABF ‘Illegal Worker Warning Notices’ dated 20 January 2020, concerning the applicant and another person; an associated infringement notice dated 6 September 2021; a request for Ministerial intervention made on 15 September 2021; and an accompanying statutory declaration dated 14 September 2021. There are also documents relating to a company [Company 1], which operates as [Business 1]. The applicant appeared before the Tribunal to give evidence and present arguments on 11 January 2020. The hearing was conducted with the assistance of an interpreter in the Chinese (Mandarin) and English languages, although the applicant is proficient in English and used it frequently. On 6 January 2022, the Tribunal sent to the applicant a letter under s.359A of the Act, inviting her comments/response to potentially adverse information, at an interview immediately before the hearing (which was originally scheduled for 7 January 2022. The information concerned the applicant’s statements (from her initial detention on 7 September 2021) about her intentions to apply for a visa, and the fact that she had made a Ministerial intervention request on 15 September 2021 and that it was finalised on 29 September 2021. Following the rescheduling of the hearing, the Tribunal sent a fresh s.359A invitation, for comment/response immediately before the rescheduled hearing on 11 January 2021. On that day, the applicant acknowledged the letter, and opted not to provide any comment/response at interview. The substance of the letter formed part of the discussions at hearing.
Evidence
Evidence Before The Court
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets any of the primary criteria for the grant of a Bridging visa E, at the time of application and at the time of decision. The applicant claims to meet cl.050.212(3)(b), on the basis of her stated intention to apply for a medical treatment visa, following the grant of a bridging visa. Given the Tribunal’s conclusion that the applicant meets cl.050.212 on the basis of cl.050.212(3)(b), it proceeds to consider the conditions that should attach to the bridging visa, if granted, and whether she would comply with the conditions.Evidence and Background The Tribunal has before it the following relevant material (not exhaustive):§ The bridging visa application lodged online on 20 December 2021. Attached to this was a submission from the applicant’s representative [Ms A], and an undated ‘personal statement’ from the applicant.§ The delegate’s decision record of 23 December 2021, which the applicant provided with the review application. This addresses the primary criteria and some information about the applicant’s activities in Australia. Attached to it is a detailed migration history.§ The review application lodged on 26 December 2021.§ The applicant’s submission to the Tribunal dated 5 January 2022, with attachments (including in the consolidated list below).§ Identity and supporting documents provided to the Department and the Tribunal, indicating that the applicant has formally changed her name in Australia to [Alias 1], but continues to use the name [applicant name] in relation to the PRC authorities.§ A submission from the applicant’s newly appointed representative, [Ms A], dated 10 January 2022.§ Post-hearing submission dated 12 January 2022 with the opinion from barrister [Mr B] on the interpretation of cl.050.212(3)(b).§ On 12 January 2022, [Ms A] advised the Tribunal that the applicant would be prepared to post a security of $,5000 to $10,000, as security to ensure her compliance with the conditions imposed on a Bridging E visa, if granted. The Department file includes other material relating to the applicant’s prior applications and migration history. These include an ABF document ‘Field Operation Located Person Interview’ dated 7 September 2021, and a Detention Client Interview – Part C, dated 18 November 2021, which the Tribunal drew on in a s.359A letter, for comment and response at interview. Other documents, not directly relevant to this review include an earlier bridging visa application dated 16 January 2020, ABF ‘Illegal Worker Warning Notices’ dated 20 January 2020, concerning the applicant and another person; an associated infringement notice dated 6 September 2021; a request for Ministerial intervention made on 15 September 2021; and an accompanying statutory declaration dated 14 September 2021. There are also documents relating to a company [Company 1], which operates as [Business 1].
Decision
Reasons for decision
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 The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.James SilvaMemberATTACHMENT: RELEVANT LAWClass WE visas contains two subclasses: Subclasses 050 and 051. In the present case, the applicant seeks 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). The primary criteria for the grant of a subclass 050 visa include subclause 050.212. This states that, 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.Substantive visa applicationThe applicant meets subclause 050.212(3) if s/he 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 the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act.Acceptable arrangements to depart AustraliaSubclause 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]).Judicial review, merits review, s.137K revocationSubclause 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.Subclause 050.212(4) is met if:(a)the applicant has applied for judicial review of a decision in relation to a substantive visa (other than a decision to refuse the visa); or (aa)the Minister has applied for judicial review of a decision in relation to the applicant’s substantive visa application (other than a decision relating to refuse the visa); or(b)the applicant has applied for merits review of a decision to cancel a visa; or(ba)the applicant has applied under s.137K for revocation of the cancellation of a visa; or(bb)the applicant has applied for merits review of a decision under s.137L not to revoke the cancellation of a visa; or(c)the Minister (or Tribunal) is satisfied that the applicant will make an application of a kind referred to in cl.050.212(4)(b), (ba) or (bb); or(d)the applicant has applied for judicial review of the validity of a law that affects their eligibility to apply for a substantive visa or their entitlement to be granted or continue to hold a substantive visa.Subclause 050.212(4AA) is met if the applicant is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in cl.050.212(3A)(b), (4)(a), (4)(aa) or (4)(d), that other person is not a party to a representative proceeding, and the applicant made a combined substantive visa application with that other person’s application.Subclause 050.212(9) is met if a decision to refuse the applicant (or a member of the family unit who has made a combined application) a Class BC or BI visa is the subject of valid judicial review proceedings that have not been completed, and the applicant (or member of the family unit) does not satisfy cl.010.211(6)(c) for the grant of a Bridging A (Class WA) visa.Consequential cancellation (review/revocation of primary cancellation)Subclause 050.212(5) is met if the applicant held a visa that was cancelled under s.140(1) or (3) because another person’s visa was cancelled, and that other person has applied for review of their visa cancellation decision (or alternatively, the Tribunal is satisfied the other person will make such an application).Subclause 050.212(5A) is met if the applicant held a visa that was cancelled under s.140(1), (2) or (3) because another person’s visa was cancelled under s.137J, and that other person has applied for revocation of their visa cancellation under s.137K or has applied for merits review of a non-revocation decision made under s.137L (or alternatively, the Tribunal is satisfied the other person will make such an application).Court declaration / review of citizenship decisionSubclause 050.212(4AAA) is met if the applicant has applied for a declaration from a Court that the Migration Act does not apply to the applicant, or has applied for judicial review or merits review of a decision made in relation to the applicant under the Australian Citizenship Act, and those proceedings have not been completed.Subclause 050.212(4AB) is met if the applicant is a member of the immediate family (as defined under r.1.12AA) of a person who meets the requirements of cl.050.212(4AAA), or is a brother or sister (who has not turned 18) of a person who meets the requirements of cl.050.212(4AAA) and who has not turned 18.Ministerial interventionSubclause 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.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. _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.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).Compelling need to workSubclause 050.212(6A) is met if the applicant holds a Bridging E visa that was granted on the basis of meeting cl.050.212(6AA), the applicant is the subject of a favourable exercise of the Ministerial power under ss.345, 351 or 417 of the Act, and the Tribunal is satisfied that the applicant has a compelling need to work.Subclause 050.212(8) is met if the applicant holds a Bridging E visa that was granted as a result of a valid application for a substantive visa that could be granted onshore and is subject to condition 8101, and the Tribunal is satisfied that the applicant has a compelling need to work. ‘Compelling need to work’ is defined in r.1.03 of the Regulations as having the meaning set out in r.1.08. Regulation 1.08 provides that a non-citizen has a compelling need to work if he or she is in financial hardship. Financial hardship is not defined in the legislation, however Departmental guidelines (PAM3) provide guidance on matters that may be relevant in determining financial hardship.Criminal DetentionSubclause 050.212(7) is met if the applicant is in criminal detention, and no criminal justice stay certificate or warrant is in force. A person is in ‘criminal detention’ if he or she is serving a term of imprisonment, including periodic detention, following conviction for an offence, or is in prison on remand. However, a person is not in criminal detention where they are subject to a community service order, on parole after serving part of a term of imprisonment, or on bail awaiting trial (r.1.09). Periodic detention is defined in r.1.03 to mean a system of restriction of liberty by which periods at liberty alternate with periods in prison. Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on it. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject.When considering cl.050.223, the Tribunal must consider which conditions, if any, should be imposed and whether it is satisfied that the applicant would abide by those conditions. In deciding the question of whether the applicant would abide by conditions imposed, the Tribunal is to consider the likely conduct of the applicant. In that context, relevant considerations may include the applicant’s past immigration history, in particular any previous breaches of immigration laws, the significance of the migration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach and whether the applicant had shown any contrition for their unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].If the Tribunal is satisfied that the applicant will abide by the conditions if security of a particular amount is required, the applicant meets cl.050.223. However, if not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl.050.223 is not met.
Ratio Decidendi
Legal Principle Established
The applicant was involved in an altercation in an immigration detention centre on 30 December 2021, and has now been transferred to hotel accommodation. As discussed at hearing, a Department officer advised the Tribunal that the applicant suffered a scrape to her [Body Part 1], that she received medical attention, and was transferred to hotel quarantine. There were no factors that affected her ability to participate in the Tribunal hearing.CONSIDERATION AND ASSESSMENTPrimary criteria: cl.050.221 As noted above, 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. On the online bridging visa E application form, the applicant indicated that she ‘intends to apply for a subclass 602 medical treatment visa to allow her to undergo surgery before she departs Australia’. The accompanying submission and the applicant’s statements confirm that she seeks to meet cl.050.212(3). Substantive visa application: cl.050.212(3) Subclause 050.212(3) is met if 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 (cl.050.212(3)(a)), or the Minister is satisfied that the applicant will apply for such a visa within a prescribed period (cl.050.212(3)(b)). ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s 5(1) of the Act. Subclause 050.212(3)(a): The applicant has not claimed, and there is nothing to suggest, that she has made a valid application for a relevant substantive visa, and that the application has not been finally determined. She therefore does not meet cl.050.212(3)(a). Subclause 050.212(3)(b): As noted above, the applicant has indicated her intention to apply for a substantive visa, namely a medical treatment visa. Cl.050.212(3)(b) reads: ‘the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, a substantive visa of a kind that can be granted if the applicant is in Australia’. The Tribunal accepts for the purpose of this decision that, at the time of applying for this visa on 20 December 2021, the applicant intended to apply for a medical treatment visa (on the basis that she would apply for the visa after the grant of the bridging visa). It takes into account the information provided on the bridging visa application form, the applicant’s earlier statement at an interview on 18 November 2021, and documentation that she has provided, relating to: (a) a recurrent health issue since December 2019 which has resulted in periods of hospitalisation and which likely requires surgery; and (b) a recent assault in immigration detention. Having accepted that the applicant intends to apply for a medical treatment visa, it is unnecessary for the Tribunal to consider the materials that the applicant intends to rely on or the prospects of its success. Section 195: Limits on a detainee’s ability to apply for a visa