2301366 (Migration)

[2023] AATA 321

2301366 (Migration) [2023] AATA 321 (14 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2301366

MEMBER:Member Nathan Goetz

DATE:14 February 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 14 February 2023 at 9:40am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – arrangements to depart Australia – previous applications for protection – family unit resident in Australia – applicant convicted of family violence offences – intention to depart Australia – breaches of Domestic Violence Order – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 65, 74, 116, 360, 367
Migration Regulations 1994, Schedule 2, cls 050.212, 221, 051.211; rr 2.20, 4.27

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 under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a Bridging E (Class WE) visa.

2. The applicant identifies as a male citizen of India presently located in Australia.

3. On 3 February 2023 the applicant applied for the bridging visa. At that time Class WE contained two subclasses: Subclasses 050 and 051. The criteria for the two subclasses are contained in Parts 050 and 051 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

4. The applicant was interviewed by the delegate on 3 February 2023. On 3 February 2023 the delegate refused to grant the applicant the bridging visa on the basis that the applicant did not satisfy either cl 050.212 or cl 051.211 of Schedule 2 to the Regulations.

5. On 3 February 2023 the applicant applied to the Tribunal for review of the decision.

6. On 7 February 2023 the Tribunal wrote to the applicant under s 360(1) of the Act and invited him to appear at a one-hour Tribunal hearing commencing at 12 noon on 10 February 2023 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. That day, the Tribunal also wrote to the applicant and asked him to provide a written submission identifying how he claimed to meet the criteria for the grant of the visa.

   CONSIDERATION OF REQUEST TO POSTPONE HEARING

7. On 7 February 2023 the applicant wrote the following to the Tribunal:

   “Please i need help extend my hearing please.”

8. The Tribunal was initially unsure whether the applicant was asking the Tribunal to extend the allocated hearing time or asking for the Tribunal hearing to be postponed to a later date. The Tribunal sought clarification from the applicant who advised that he had been ‘in quarantine’ at the immigration detention centre, there was ‘network issues’ which mean that he could not contact any lawyer, and that he was now ‘back in the compound’ and needed time to look for a lawyer.

9. The Tribunal considered the request but was not persuaded to grant a postponement. The Tribunal advised the applicant that his request had been refused.

10. On 9 February 2023 the applicant again wrote to the Tribunal, pressing for a postponement of the Tribunal hearing which was scheduled the following day, citing a need to find representation, his deficiency in English, and a need to ‘collect more evidence from the community.’

11. The Tribunal considered the requested but was not persuaded to grant a postponement. The Tribunal advised the applicant that his request had been refused.

12. The Tribunal determined that it was not appropriate to grant the postponement request for the following reasons.

13. In reviews concerning a decision to refuse to grant a bridging visa which has resulted in an applicant being detained in an immigration detention centre, the Tribunal has 7 working days after the day on which the review application is received in which to make a decision (or longer with the applicant’s consent).[1] While the Tribunal acknowledges that a postponement request is necessarily indicative of the applicant’s agreement of an extension to the period during which the Tribunal must determine a review, the Tribunal is not persuaded that this is determinative about whether a postponement should be granted.

    [1] s 367; reg 4.27.

14. The applicant applied for the bridging visa on 3 February 2023. He received a refusal decision that day. As demonstrated by his migration history, he has experience navigating visa applications, and bridging visa applications particularly. If the applicant desired obtaining legal representation connected with the review application, he should have arranged to do so at the time he applied to the Tribunal for review of the decision. Likewise, the applicant should have gathered all the ‘evidence from the community’ he referred to and submitted it when he applied for the bridging visa, or when he applied to the Tribunal for review of the decision. The Tribunal’s judgement is that the applicant had adequate time to prepare his bridging visa application and his review application.

15. The Tribunal has also considered that little prejudice would flow the applicant from the refusal to postpone the Tribunal hearing in the event that the Tribunal affirmed the delegate decision. Unlike refusals or cancellations of some visas which may result an applicant being prohibited from lodging another visa of that kind, the applicant is not prohibited from lodging another bridging visa application (after 30 days): s 74 of the Act.

16. The Tribunal determined that an appearance by MS Teams was appropriate in all the circumstances because the applicant was detained in an immigration detention centre. On 10 February 2023 there were technical issues which prevented the applicant appearing via audio-visual means at the Tribunal hearing. By the time the Tribunal was able to make contact with the applicant, it was by telephone and close to the end of the allocated hearing time. The Tribunal determined that it was appropriate to postpone the Tribunal hearing until 13 February 2023. The applicant indicated that he was willing to appear via audio-visual means or audio only on the next occasion. The Tribunal determined that it would attempt to conduct the Tribunal hearing on the next occasion by audio-visual means, but that if that failed due to technical reasons, the Tribunal hearing would proceed by audio-means only.

17. On 13 February 2023 the applicant appeared at the Tribunal by MS Teams. The Tribunal hearing was conducted with the assistance of an interpreter in the English

    CRITERIA FOR THE VISA

    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.

    Eligible non-citizen – cl 051.211

19. At the time of the visa application, the applicant must be an eligible non-citizen as provided in subregulation 2.20(7), (8), (9), (10) or (11). The applicant must continue to satisfy this criterion at the time of decision: cl 051.221.

    CONSIDERATION OF EVIDENCE

20. The Tribunal considered all the evidence provided by the applicant in support of the bridging visa application, including what the applicant said at the Tribunal hearing. The Tribunal also considered the contents of the Department and Tribunal files.

    Identity and basis for the grant of the visa

21. The applicant is a male citizen of India presently located in Australia. He was born in Punjab state/province, India, is currently [age] years of age and holds an Indian passport expiring [in] 2027. He is presently an unlawful non-citizen in Australia.

22. The applicant identified his family unit as consisting of his wife [named] (born [DOB 1], a son named [name] (born [DOB 2]) aged [age] and a daughter named [name] (born [DOB 3]) aged [age].

23. He declared that he was applying for the bridging visa because he was ‘departing Australia.’

24. He claimed to be planning to depart Australia on 5 March 2023 by airplane. He provided ticket details as [Flight number] with a confirmation [number]. The visa form identified that the applicant attached travel tickets and a letter from a landlord. He detailed the following:

25. “Currently I am in detention centre. Before leaving Australia, I want to see my children and spend some good time with them. My daughter is only [age] old, and I have never seen her in my life. Please understand a father’s feelings. I can’t hold back my tears when I miss my children. If I depart Australia from the detention centre, I will never see my children again in my life. This would be the last chance to see my children. My childhood friend will support me and provide all my expenses until 5 March 2023 when I depart Australia.” (Summarised from original). The applicant provided the contact details of the person identified as his friend.

26. At the Tribunal hearing, the applicant confirmed that he was seeking the bridging visa on the basis that he was making arrangements to depart Australia. He told the Tribunal that the flight booked for 5 March 2023 was a flight to India from [Australia]. However, he said that he did not intend to stay in India because he feared harm there. This was consistent with the fact that the applicant previously applied for protection visas in Australia and had not returned to India since his last arrival in Australia. He told the Tribunal that once he was in India, he planned to travel to Dubai. He suggested that a company he worked for until 2018 would secure him a visa to go to that country after initially telling the Tribunal that he already had an existing right to enter and reside in Dubai. He confirmed that no flight had been booked for Dubai and that no visa currently existed for him to go to Dubai. He told the Tribunal that he was unsure how long he would remain in Dubai. He expressed a desire to leave Australia not directly from an immigration detention centre because he wanted to be in the best position to apply for a visa to return to Australia so he could see his family. He told the Tribunal that his wife and children had been granted protection visas and were unable to leave Australia to see him.

27. He claimed he would not face harm at the airport in India, and that is why he would go there and then travel to Dubai. The Tribunal asked why the applicant would not have already booked a flight and obtained a visa to go to Dubai, but he suggested that it would be too expensive to travel directly to Dubai from Australia, and that it would be cheaper to fly to India from Australia and then fly from India to Dubai. He suggested that he would be able to get a visa to travel to Dubai in two hours after landing in India and that his former employer would be able to assist him to achieve this.

28. The applicant repeated to the Tribunal his intention as detailed in his protection visa application form and expressed to the delegate at interview on 3 February 2023 about why he wanted to be granted the bridging visa, namely so he could see his children before he left Australia. He again repeated that he had never met his youngest child because he was detained at the time of her birth. He told the Tribunal that he spoke to his wife on the telephone last week from immigration detention, but his family had not visited him either when he was in criminal detention (which he attributed to the family being too far away from the prison in New South Wales) or in immigration detention (which he attributed to the family being in New South Wales whereas the applicant was detained in Western Australia).

29. At the delegate interview on 3 February 2023, the delegate observed to the applicant that he had been scheduled to be removed from Australia to India on [a day in] February 2023 (that is, the following day) and queried why the applicant would apply for a bridging visa to depart Australia in March 2023 if he genuinely intended to depart Australia. He repeated a desire to see his children and repeated this at the Tribunal hearing to explain why he did not leave Australia on [that day in] February 2023.

    Criminal history

30. The applicant detailed in his form that he had committed criminal offending in Australia. He identified this as domestic/family violence. He described the offending as “I had a small argument with my wife and was arrested [in] January 2021. I received [term] imprisonment with [period] parole. I finished my sentenced and complied with all conditions.” (Summarised from original). At the Tribunal hearing, he confirmed that he had seen sentenced as follows.

    ·[November] 2020: [Court 1]

    Convicted and sentenced to [term] Community Correction Order commencing [that day] and concluding [in] March 2022 for common assault x 2 (domestic violence). Stalk/intimidate intend to fear physical harm, assault occasioning actual bodily harm (domestic violence), contravene apprehended domestic violence order x 3.

    ·[March] 2021: [Court 2]

    Convicted and sentenced to [term] imprisonment with a non-parole period of [term] for assault occasioning actual bodily harm (domestic violence) x 2, contravene apprehended violence order x 4, common assault (domestic violence) and stalk/intimidate intend to fear physical harm.

31. The criminal detention history demonstrates that the applicant was remanded in criminal detention [in] June 2020 before being released on bail [later in] June 2020. The applicant was remanded [in] July 2020 and bailed [later in] July 2020. He was then remanded on [a day in] January 2021 and was in criminal detention until the was released from prison [in] August 2021.

32. At the Tribunal hearing, the applicant told the Tribunal that he was released [in] June 2020 but remanded again the following day because he did not understand that he was prohibited from seeing his family and did so. He also confirmed that since [January] 2021 when he was remanded in criminal detention, he has not been at liberty in the Australian community.

33. Concerning his criminal history, the applicant told the delegate at interview on 3 February 2023 that the Domestic Violence Order that had been referred to in the criminal offending was still in force but that he would be able to see his children ‘through his lawyer’ despite there being only one month until his planned departure from Australia on 5 March 2023. At the Tribunal hearing, when the Tribunal queried the current terms of the Domestic Violence Order, the applicant said that the order was no longer in place. He claimed that it ceased in January 2023 and that his wife made an application in October 2022 to revoke the order, but he had no documentation to confirm that the Domestic Violence Order had been revoked and that he could now see his wife and children without restriction.

34. The Tribunal queried the inconsistent evidence given to the delegate and the Tribunal. The applicant said that he was told by the delegate that the Domestic Violence Order was still in place which was not his understanding. He claimed that he told the delegate that it was not in place, but if he was wrong, he would use a lawyer to see his children. There is no evidence on the Department file about whether the Domestic Violence Order that the subject of criminal charges is still in place.

35. The Tribunal observed that the applicant had committed offences in Australia, and breached court orders, which may suggest to the Tribunal that the applicant had a disregard for rules. The Tribunal reasoned that the applicant’s previous disregard for expectations that he does not commit criminal offending and comply with court orders may equally apply to the grant of the bridging visa. That is to say, the applicant may ignore the purpose of the grant of the bridging visa which is to depart Australia. The applicant disputed that he would do so, citing that he had not seen his family for a long time and that his purpose was to see his children before he left Australia.

    Applicant’s visa history

36. At the Tribunal hearing, the applicant confirmed that he had no outstanding visa applications or matters connected with visa applications. The applicant’s visa history is detailed as follows:

    Substantive Migration history

37. On 28 May 2019 the applicant was offshore and granted a visitor visa. [n] June 2019 he arrived in Australia holding this visa and departed Australia [in] September 2019. He returned to Australia [in] September 2019 holding the same visa. That was the last time the applicant entered Australia. The visa was valid until [December] 2019.

38. On 18 November 2019 the applicant applied for a protection visa solely on the basis of membership of the family unit. On 21 September 2021 the delegate refused to grant the protection visa. On 22 September 2021 the applicant applied to the Tribunal for review of the decision to refuse to grant the protection visa. On 8 November 2021 the Tribunal affirmed the decision to refuse to grant the applicant the protection visa: AAT case 2112867.

39. On 30 April 2021 the applicant applied for a protection visa on the basis that he had a well-founded fear of persecution or that there was a real risk he would suffer significant harm. In other words, he was raising his own protection claims. On 7 July 2021 the delegate refused to grant the applicant the protection visa. On 22 July 2021 the applicant applied to the Tribunal for review of the decision to refuse to grant the protection visa. On 28 October 2021 the Tribunal affirmed the decision to refuse to grant the applicant the protection visa: AAT case 2109337. [In] December 2021 the applicant applied to the Federal Circuit and Family Court for judicial review of the Tribunal decision. [In] August 2022 the Court dismissed the judicial review: [Case number].

40. As discussed previously, the applicant gave evidence that he was fearful of returning to India and that he did not plan to stay there.

    Bridging visa migration history

41. On 5 December 2019 the applicant was granted a bridging visa to regularise his migration status in Australia in connection with his first protection visa application. On 18 March 2021 a delegate cancelled the bridging visa under s 116 of the Act. On 19 March 2021 the applicant applied to the Tribunal to review the decision to cancel the bridging visa. On 1 September 2021 the Tribunal found it had no jurisdiction to review the decision to cancel the bridging visa: AAT case 2103525.

42. On 18 May 2021 the applicant was granted a bridging visa to regularise his migration status while he was in prison. This visa ceased when the applicant was released from criminal detention [in] August 2021.

43. On 6 August 2021 the applicant applied for a bridging visa. On 12 August 2021 a delegate found the visa application to be invalid.

44. On 23 August 2021 the applicant was granted another bridging visa to regularise his migration status while he was in prison. This visa ceased when the applicant was released from criminal detention [in] August 2021.

45. On 7 September 2021 the applicant applied for a bridging visa to regularise his migration status in connection with his outstanding protection visa application(s). A delegate refused to grant the bridging visa on 10 September 2021. On 10 September 2021 the applicant applied to the Tribunal for review of the decision. On 17 September 2021 the Tribunal affirmed the decision to refuse to grant the bridging visa: AAT 2112244.

46. On 14 March 2022 the applicant applied for a bridging visa on the basis that he had ongoing judicial review proceedings. On 18 March 2022 a delegate refused to grant the bridging visa. On 18 March 2022 the applicant applied to the Tribunal for review of the decision. On 29 March 2022 the Tribunal affirmed the decision: AAT 2204011.

47. On 23 August 2021 the applicant was granted a bridging visa to regularise his migration status while he was in prison. This visa ceased when he was released from criminal detention [in] August 2021.

1. On 29 August 2022 the applicant applied for a bridging visa on the basis that he was seeking review of a decision to cancel a visa. There was no evidential basis for the existence of that ground. On 1 September 2022 a delegate refused to grant the visa. The applicant applied to the Tribunal for review of the decision. On 12 September 2022 the Tribunal affirmed the decision to refuse to grant the visa: AAT 2213180.

2. On 3 February 2023 the applicant applied for the bridging visa that is currently under review.

   FINDINGS AND REASONS

3. The issue in this case is whether the applicant satisfies either cl 050.212 or cl 051.211 of Schedule 2 to the Regulations.

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

   Grounds for seeking the visa - cl 050.212

5. The applicant did not claim to satisfy any grounds for the grant of the bridging visa other than cl 050.212(2), namely that he is making, or is the subject of, acceptable arrangements to depart Australia.

6. No other grounds are available on the evidence. The Tribunal is not satisfied that the applicant satisfies cl 050.212(3), (3A), (4), (4AAA), (4AA), (4B), (4A), (5), (5A), (5B), (6), (6AA), (6B), (7), (8), or (9).

7. The Departmental guidelines (PAM3), whilst not binding on the Tribunal, nevertheless provide 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]).

8. The Tribunal accepts that the applicant has provided evidence of making a flight booking for 5 March 2023 to depart Australia for India. The Tribunal accepts that the applicant has a valid Indian passport which would allow him to enter India. The Tribunal also accepts that the applicant desires to see his family, particularly his children, and notes that the applicant has never physically seen his second child.

9. However, the Tribunal does not accept that the applicant is making, or subject of, acceptable arrangements to depart Australia because the Tribunal is not satisfied that the applicant will depart Australia as he claimed.

10. The applicant’s migration history demonstrates a longstanding desire to remain permanently in Australia. He has lodged two protection visa applications and told the Tribunal that he is fearful of harm upon his return to India. The Tribunal does not accept that he would depart the flight to India in March 2023. The Tribunal is not persuaded by the applicant’s explanations about cost being a factor about why he did not book a flight to Dubai from Australia, nor is the Tribunal satisfied by the applicant’s explanations about why he has not applied for a visa to Dubai.

11. The Tribunal does not accept that if the applicant genuinely intended to depart Australia, he would book a flight to India (a country from which he sought protection in Australia) and then make arrangements to depart that country for a safe place once he was in India. If the applicant was genuine, he would have booked a flight to Dubai and a visa to that country would already be in place. The Tribunal is satisfied that the applicant booked that flight to lend credibility to his claim that he would leave Australia, not because he genuinely will do so.

12. Further, the applicant’s criminal history demonstrates that the applicant is a person who ignores orders from authority. He was subject to a Domestic Violence Order and breached that order on various occasions. He engaged in criminal conduct during his time in Australia. This pattern of behaviour demonstrates to the Tribunal that the applicant is prepared to ignore orders and social norms. The Tribunal is satisfied that if he released on a bridging visa, the applicant would similarly ignore the requirement to depart Australia.

13. Finally, the applicant has a wife and two children who are now permanent residents in Australia.

14. The Tribunal is unsure of the current nature of that relationship but whatever its status, the Tribunal is satisfied that the applicant has a strong desire to see his children. Whether the applicant believes he is permitted to do so is not something that the Tribunal is aware of, given the conflicting evidence provided by the applicant about whether the Domestic Violence Order is in place.

15. After the Tribunal hearing, the Tribunal became aware that [in] January 2023 a provisional Domestic Violence Order was made at [Court 3] against the applicant in favour of his wife. The record indicates that the applicant was not present in court when the order was made. The matter was adjourned to [February] 2023. The Tribunal also became aware that the applicant had a charge of contravention of a Domestic Violence Order listed [in] April 2024 at [Court 3]. As the applicant has been detained either in criminal detention or immigration detention since January 2021, the Tribunal cannot be satisfied that the applicant was aware of these matters, especially because the Domestic Violence Order application was a new application. Despite the concerns that the Tribunal had about the change in the applicant’s evidence about whether he was presently subject to a Domestic Violence Order or not, there is no recording of the delegate interview, and the Tribunal cannot be sure that what the applicant claimed at the Tribunal about what he said at the delegate interview is untrue.

16. In any event, whether the applicant is presently subject to a Domestic Violence Order or has outstanding criminal charges is not an issue that impacts on the grounds for the grant of the visa. The sole issue is whether the applicant is making, or subject of, acceptable arrangements to depart Australia.

17. The Tribunal is not satisfied that if the applicant saw his children (if he was permitted by law to do so), he would then be prepared to depart Australia.

18. Rather than being an incentive for the applicant to be granted the bridging visa and leave Australia, the Tribunal is satisfied that as long as his children are in Australia, the applicant will have a desire to remain in this country and will refuse to leave.

19. Considering the evidence as a whole, the Tribunal is not satisfied that the applicant is making, or subject to, acceptable arrangements to depart Australia. The Tribunal is not satisfied that if the applicant is afforded the opportunity to be at liberty in the community, he will depart Australia.

    Eligible non-citizen – cl 051.211

20. The applicant did not claim that he is an ‘eligible non-citizen’ referred to in subregulation 2.20(7), (8), (9), (10) or (11). The applicant would not satisfy any of those subregulations because there is no evidence that the applicant was refused immigration clearance (as required by (7), (8), (9) or (10), and there is no evidence that he is a member of the family unit to whom (10) applies.

    CONCLUSION

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

22. For these reasons, the applicant does not satisfy the criteria for the grant of 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

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

    Nathan Goetz
    Member