2213125 (Migration)

[2022] AATA 3769

2213125 (Migration) [2022] AATA 3769 (15 September 2022)

Corrigendum

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Zaki Omar

CASE NUMBER:  2213125

MEMBER:Paul Windsor

DATE OF DECISION:  15 September 2022

DATE CORRIGENDUM

SIGNED:4 November 2022

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1.In the footer to the statement of decision and reasons the case number of 2105447 be deleted and in its place the case number of 2213125 be inserted;

2.In line three of paragraph four, a ‘t’ be inserted before ‘he’ so as to refer to ‘the applicant’;

3.In the ninth line of paragraph 11, the word ‘Tribuanl’ be deleted and replaced with the word ‘Tribunal’;

4.In line three of paragraph 13, the second reference to ‘applicant’ which appears after ‘previous protection visa’ be deleted and in its place the word ‘application’ be inserted; and

5.In the thirteenth line of paragraph 25, the word ‘Tribuanl’ be deleted and replaced with the word ‘Tribunal’.

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Zaki Omar

CASE NUMBER:  2213125

MEMBER:Paul Windsor

DATE:15 September 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criterion for a Subclass 050 (Bridging (General)) visa:

·subcl 050.212(5B) of Schedule 2 to the Regulations.

The primary decision maker is to consider the remaining criteria.

Statement made on 15 September 2022 at 4:01 pm

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicant is subject to s 48A – applicant ‘has made’ a request to the Minister – applicant ‘has a made a request’ under s 48B and ‘has not previously sought’ a determination under s 48B –decision under review remitted 

LEGISLATION
Migration Act 1958, ss 5, 48, 73
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221

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 30 August 2022. 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 criteria at cl 050.212(2) of the Regulations which must be satisfied at the time of application.

3. In submissions in support of the application, the applicant’s representative noted that the applicant had lodged a previous Bridging E visa application on 16 June 2022 and that accompanying submissions contained a request to allow the applicant to reapply for a protection visa based on claims and grounds that were not previously assessed.  It was further noted that these submissions were preceded by email correspondence with the Department of Home Affairs (the Department) where it was made ‘abundantly clear’ that the applicant ‘will apply’ for a substantive protection visa for which a request for ministerial intervention was forthcoming.

4. Following the refusal of the previous Bridging E visa application, the applicant sought review of the delegate’s decision by the Tribunal.  The representative noted, inter alia, that the Tribunal (differently constituted) accepted that he applicant, at the time of the application, ‘will apply’ for Ministerial Intervention and meets subcl 050.212(3)(b) of the Regulations.

5. The representative observed that further submissions were made on 22 June 2022 requesting Ministerial Intervention in light of s 48A and s 48B of the Act.  The representative comments that on 7 July 2022, an officer of the Department advised that the request had been finalised without referral to the relevant Minister.

6. The representative further advised that, on 4 August 2022, the applicant lodged an application for judicial review before the Federal Court of Australia (FCA) ‘impugning, amongst others, the Non-referral Decision (Judicial Review Application)’.  The representative asserted that, by reason of the Judicial Review Application challenging the Non-referral Decision, the Ministerial Intervention Request with a view to the applicant reapplying for a Protection visa is legally ongoing.

7. It was asserted therefore, that the applicant meets subcl 050.212(3)(b) because he 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.  It was further asserted that the applicant meets the requirements of subcl 050.212(5B) as he is a person to whom s 48A of the Act applies; and has made a request to the Minister to determine under s 48B that      s 48A does not prevent an application for a protection visa; and has not previously sought, or been the subject of a request by another person for a determination under s 48B of the Act; or the exercise of the Minister’s power under s 345, 351 or 417 of the Act.

8. The decision to refuse to grant the visa was made on 2 September 2022 on the basis that the delegate was not satisfied that the applicant satisfied any of the grounds set out in         cl 050.212.  The delegate indicated in her decision record that she was not satisfied the applicant met subcl 050.212(3) because he had not made a valid application for a substantive visa and she did not consider he is currently intending to lodge a valid substantive visa application, noting that he is prevented for making a valid protection visa application due to the s 48 bar, and had submitted a request for the Minister to lift the bar which was unsuccessful.

9. In relation to subcl 050.212(4), the delegate noted that the applicant has commenced judicial review in relation to the unsuccessful s 48 Ministerial Intervention request, but considered that is not a circumstance provided for by the Regulations. In support, she cited advice from the Department’s Procedures Advice Manual 3 (PAM3) indicating that the Regulations do not provide for the grant of a Bridging E visa to a person seeking judicial review of an unsuccessful request for Ministerial Intervention, because such an application is not ‘in relation to’ a substantive visa.

10. The delegate indicated that she was not satisfied the applicant met the requirement in         subcl 050.212(5B), stating (incorrectly) that the applicant is not a person to whom s 48A applies.  The delegate then went on to state that the applicant made a request for Ministerial Intervention under s 48B which was ‘not referred’ on 7 July 2022.  

11. The representative provided detailed pre-hearing submissions and supporting documents on 12 September 2022.  These were discussed at length at the hearing on 13 September 2022.  In the main submission, the representative asserts that the delegate’s decision is ‘plainly wrong’.  It is asserted that the applicant does intend to apply for a substantive visa, subject to permission by the Minister.  The representative asserts that the non-referral decision does not negate the applicant’s intention that he will apply, ‘as and when opportunity is accorded’; and that the judicial review action reinforces this intention. It is stated that the Tribunal previously accepted that the applicant had the intention to apply for a substantive visa. In relation to the latter point, the current Tribuanl made clear at the hearing that it is not bound by the findings of the previous Tribunal and will reach its own conclusions independently, after consideration of the relevant issues.

12. The representative asserts that the delegate wrongly concluded that the applicant does not meet the requirements in subcl 050.212(4), citing the general principle held by various courts previously that all words must prima facie be given some meaning and effect, to argue that the words ‘in relation to’ in the relevant clause had ‘no work to do’ in the construction adopted in the delegate’s decision, and that ‘a decision to not refer an individual for ministerial intervention under s 48B is clearly connected to “a protection visa”’.

13. The delegate also asserts that the reference on page 5 of the delegate’s decision record, in reference to subcl 050.212(5B) that s 48A does not apply to the applicant is plainly wrong, as the applicant had a previous protection visa applicant which was refused.  He also asserts that the Ministerial Intervention request cannot be considered to be closed as long as the Non-referral Decision is on judicial review, noting that if the review is successful ‘it would be deemed as a continuation of the same request and not a ‘repeat request’’. 

14. The representative asserts that the applicant meets the requirements of subcl 050.212 because he meets subcl 050212(3)(b) (because he ‘will apply’ for a Protection visa);       subcl 050.212(4)(a) (because he has sought Judicial Review of the decision not to refer the Ministerial Intervention request to the personal attention of the Minister; and                    subcl 050.212(5B) (because he has made a request to the Minister under s 48A to determine that s 48A does not apply in his case).

15. The applicant appeared before the Tribunal on 13 September 2022 from [a] Immigration Detention Centre by video-link to give evidence and present arguments. His representative participated in the hearing, as well as Ms [A] and Mr [B] from [an organisation].

16. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF Claims and evidence

17. The issue in this case is whether the applicant meets the requirements of cl 050.212 of the Regulations.

    The grounds for seeking the visa – cl 050.212

18. 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.

19. In this case, the applicant is seeking to meet subcl 050.212(3)(b); and/or   subcl 050.212(4)(a); and/or subcl 050.212(5B).

    Assessment – Will apply for a substantive visa application

20. Subclause 050 212(3)(b) is met if the Tribunal 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.

21. ‘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.  

22. The Tribunal accepts that the applicant wishes to make a further protection visa application and ‘will apply’ for a protection visa if he is able to make a valid application.  However, he is barred from doing so under s 48A of the Act.  While there remains the possibility that this bar might be lifted in the future, as a consequence of the judicial review initiated in relation to the ‘non-referral decision’, the Tribunal finds this prospect remains only a possibility.  The Tribunal notes that the relevant subclause requires that the Tribunal ‘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, not that he might apply at some time in the future.  Given this, the Tribunal finds it cannot be 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.

23. Accordingly, the Tribunal finds that the applicant does not meet cl 050.212(3)(b).

    Assessment - Has applied for judicial review of a decision in relation to a substantive visa

24. Subclause 050.212(4)(a) is met if the applicant has applied for judicial review of a decision in relation to a substantive visa (other than a decision to refuse the visa).

25. The Tribunal accepts that the applicant has made an application for judicial review to the FCA.  The representative has provided a copy of a document that sets out the details of the claim. The relief sought includes a declaration that the relevant guidelines issued by the Minister on 15 April 2019 in relation to the Ministerial Intervention power under s 48B of the Act are invalid; a writ of certiorari to quash the purported legal effect of the Guidelines; and a writ of mandamus directed to the Department Secretary requiring him to bring to the Minister’s attention the applicant’s request for Ministerial intervention.  In the alternative, the relief sought includes a declaration that the Departmental officers involved in the non-referral decision be found to have made a decision that was legally unreasonable and therefore unauthorised by law; a writ of certiorari to quash the purported legal effect of the decision by the Departmental officers, and a writ of mandamus directed to the Department Secretary requiring him to bring to the Minister’s attention the applicant’s request for Ministerial intervention unless assessed as not meeting the Guidelines.  The Tribuanl notes there is no mention of this being judicial review in relation to a substantive visa. The Tribunal finds that the judicial review is in relation to the validity of the relevant Ministerial Guidelines and/or the legal reasonableness and authority under law in relation to the actions of the relevant Departmental officers who made the ‘non-referral decision’.

26. Accordingly, the Tribunal does not accept that the applicant has applied for judicial review of a decision in relation to a substantive visa and therefore finds that the applicant does not meet subcl 050.212(4)(a).

    Assessment - Has made a request to the Minister to determine under s 48B that s 48A does not apply

27. 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.

28. The Tribunal accepts that the applicant is subject to s 48A.  The Tribuanl finds that on 22 June 2022 the applicant made a request to the Minister to determine under s 48B that s 48A does not apply.  The evidence before the Tribunal indicates that on 7 July 2022 the request for Ministerial Intervention under s 48B was closed with a decision that the matter was not to be referred to the Minister as it did not meet the requirements of the relevant guidelines issued by the Minister regarding matters that should be referred to the Minister for consideration.

29. The representative asserted that, in light of the judicial review discussed above, this request for Ministerial Intervention under s 48B is ongoing.  The Tribunal found this difficult to accept, noting that, while the Tribunal accepts there is a possibility that the request for Ministerial Intervention might be reinstated, as a consequence of the outcome of the judicial review proceedings, it appears that currently (and at the time of application) the matter is finalised.

30. After further consideration, however, the Tribunal considers another interpretation is open on the face of the criterion.  The language of subcl 050.212(5B)(b) refers to the past tense of ‘has made’, and there is nothing expressly in the criterion concerned about the outcome of that request.  It seems open, therefore, to read this as only requiring a request to have been made at some point in time.  Whether the request is open, closed, referred to the Minister or any other outcome seems to be irrelevant to this question.  On this view, it would be open to conclude that the applicant ‘has made’ a request to the Minister.

31. Subclause 050.212(5B)(c) does refer to an application that has been ‘previously sought’. ‘Previously sought’ is not a defined term and the words should be given their ordinary meaning. The Macquarie Dictionary defines ‘previously’ to include ‘coming or occurring before something else; prior’, and ‘sought’ as including ‘past tense and past participle of seek’. When read together, and in the context of subcl 050.212(5B), it is arguable the criterion is about preventing multiple requests (that is, a previous request followed by a later request) and not with a single request. On this view, the Tribunal considers it is open to find that, as a question of fact, the applicant ‘has a made a request’ under s 48B and ‘has not previously sought’ a determination under s 48B. It is also the case that the applicant has not previously made a request to the Minister for the exercise of the Minister’s power under ss 345, 351 or 417 of the Act.

32. While the Tribunal has some difficulty with this construction because an applicant who only ever made a single request to the Minister under s 48B would satisfy the criterion in       subcl 050.212(5B) in perpetuity, the Tribunal nevertheless finds this to be an open interpretation based on the plain words in the criterion.

33. Accordingly, the Tribunal finds that the applicant meets subcl 050.212(5B). 

    decision

34. The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criterion for a Subclass 050 (Bridging (General)) visa: subcl 050.212(5B) of Schedule 2 to the Regulations.

35. The primary decision maker is to consider the remaining criteria.

    Paul Windsor
    Member