2316951 (Migration)

[2023] AATA 3777

2316951 (Migration) [2023] AATA 3777 (2 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2316951

MEMBER:Penelope Hunter

DATE:2 November 2023

PLACE OF DECISION:  Sydney

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

·cl 050.212(3) of Schedule 2 to the Regulations

Statement made on 02 November 2023 at 4:46pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Federal Court remittal – abiding by visa conditions – applicant convicted and imprisoned – demonstrated intention to apply for a substantive visa – limited access in detention – decision under review remitted     

LEGISLATION

Migration Act 1958, ss 5, 73, 116, 269
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 051.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 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 Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act and a decision made by an authorised officer relating to requiring a security under s 269 of the Act.

2. The applicant applied for the visa on 17 October 2023. 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 1994 (Cth) (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 20 October 2023 on the basis that the applicant did not meet the requirements of cl.050.212 or cl.051.211. On 23 October 2023, the applicant applied to the Tribunal for a review of that decision.

4. The applicant appeared before the Tribunal on 27 October 2023 via video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is [an age] year old male citizen of India. 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.

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

8. At the hearing on 27 October 2023, the applicant confirmed the following migration history:

   i.He arrived in Australia [in] January 2008 as the holder of a [Student] visa. He undertook study and was granted further [Student] visas.

   ii.On 7 March 2015, the applicant was granted a subclass 457 (Temporary Work(Skilled)) visa valid for 4 years. This visa was cancelled on 6 March 2019 pursuant to s 116(1)(b) of the Act because the applicant was found to have breached condition 8107 of his visa.

   iii.The applicant sought a review of that decision which was affirmed by this Tribunal on 23 May 2019. The applicant then sought judicial review of the Tribunal’s decision which was upheld by the Federal Circuit Court of Australia [in] March 2022. The applicant again appealed the decision and [in] June 2022, the Federal Court of Australia set aside the decision and remitted the matter back to the Tribunal for reconsideration.

   iv.[In] May 2020, the applicant was convicted and sentenced to 6 months imprisonment for an indecent offence. On release from prison he was transferred to immigration detention.

   v.On 13 September 2023, the matter was reconsidered by the Tribunal and the decision was set aside and substituted with a decision not to cancel the applicant’s subclass 457 (Temporary Work(Skilled)) visa. 

   vi.On 14 September 2023, the Department made a further decision to cancel the visa of the applicant pursuant to s 116 of the Act.

   vii.On 17 October 2023, the applicant lodged an application a Bridging visa E which was refused on 20 October 2023.

   viii.On 21 October 2023, the applicant filed the current application for review of the decision to refuse the Bridging visa E.

   ix.On 23 October 2023, the applicant lodged an application for a subclass 866 Protection visa.

   Substantive visa application

9. 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, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

10. ‘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 an application being made: s 5(9) of the Act.

11. In his bridging visa application form the applicant set out that he was seeking the visa on the due to merits review at the Administrative Appeals Tribunal or the revocation of a visa cancellation.

12. On 26 October 2023, the applicant provided a submission to the Tribunal accompanied by several photographs. In these submissions the applicant detailed how a fellow detainee had broken all the computers he could access and he claimed it was impossible for him to prepare a submission without access to a computer. Secondly the applicant claimed that his continual issues in detention had left him psychologically ill and he had recently had a hospital admission.

13. At the hearing on 27 October 2023, the applicant told the Tribunal that he was not aware that the matter would be listed so quickly he said he was not prepared, he was unwell and claimed had limited ability to answer questions in relation to his review application. The Tribunal highlighted to the applicant the timeliness requirements for bridging visa decisions particularly in circumstances where an applicant is in detention, and following the receipt of further information from the applicant it made a reasonable adjustment of allowing him time, until 31 October 2023, to provide further submissions. The applicant subsequently agreed to this extension in writing.

14. While the applicant has provided no evidence of any medical condition impacting on his ability to answer questions at the hearing, the Tribunal acknowledges he has provided post hearing a Detainee Medical Request form dated [in] October 2023, indicating that he had requested copies of his medical records. He told the Tribunal at the hearing that he had been taken to hospital the previous day with chest pains. The Tribunal asked the applicant if he had received a diagnosis and he responded that they said he needed rest. The applicant was again requested to advise if he was told the reason he was feeling unwell, and he responded that it he had a panic attack and depression. The Tribunal then attempted to explore with the applicant if he was receiving any treatment or medication for a conditions and he claimed that he was going to book an appointment and get some medication. Again the applicant was asked to clarify what treatment he was currently receiving and he said that he had vitamins and counselling sessions for mental health. In the absence of medical evidence the Tribunal informed the applicant it would not delay the hearing and it has received no subsequent information to demonstrate that a further hearing was required as the applicant was medically incapable of participating.

15. In addition, the applicant argued that he was not ready to for the hearing as he had been unable to prepare submissions because all the computers in the detention centre had been destroyed and he needed to undertake research to assist his application. He also claimed he wished to take advice from his agent. The Tribunal ascertained from the applicant that he would be in a position to contact his agent later that day, and he identified the representative who assisted him with the visa application before the Department as having already been engaged. As noted above the Tribunal allowed the applicant additional time to provide submissions to further extend to the applicant further opportunity to put information before the Tribunal for considerations.

16. The Tribunal did attempt to obtain information relevant to the review at the hearing. Repeatedly the applicant claimed that he was not able to answer certain questions at the hearing, however the Tribunal is satisfied that he understood the questions put to him. It is noted that he selectively chose to respond to certain questions, he was able to provide lengthy submissions about what he perceived to be the unfairness of his situation and further posited several questions to the Tribunal. He had a clear recall of the order and timeliness of events and his past migration history. He also confirmed that he understood the interpreter.

17. At 11:57pm on 31 October 2023, the applicant provided a further email to the Tribunal attaching several document including:

    i.Screenshots of text messages with his agent.

    ii.Screenshots of WhatsApp messages with his agent.

    iii.Screenshots of WhatsApp messages with the staff of his agent.

    iv.A letter from [Lawyers 1] dated 19 May 2019 advising that they were assisting the applicant with the recovery of unpaid wages in the amount of $63,000.

    v.Letters from the Australian Taxation Office (ATO) to the applicant regarding the investigation of his superannuation guarantee dated [in] April 2019, [January 2020,  [and] March 2020.

    vi.Letter from the ATO to the applicant advising that the investigation had closed because his employer was placed into liquidation, dated [in] March 2020.

18. The applicant told the Tribunal that when he received a positive decision from the Tribunal on 13 September 2023 setting aside the refusal of his subclass 457 visa, he believed that he had to apply for a bridging visa, such as the visa under review before he could submit a substantive visa application. It was always his intention to make a substantive visa application, he had contacted his agent shortly after the decision of 13 September 2023, and he was not sure why it took him so long to apply for the bridging visa. The applicant maintained that he always intended to do something in relation to his visa status and this was the reason he had spent four years challenging the decision to cancel his subclass 457 visa. The text messages he has supplied to his agent indicate that the applicant was seeking and persisting with an attempt to receive advice about lodging a further visa application.

19. The Tribunal considers that his reasons that as set out in the bridging visa application form are consistent with this evidence.

20. The delegate comments in their decision record that the applicant did not specify which type of visa he intended to apply for at interview, but that it would be a work visa. At hearing the  applicant told the Tribunal that he intended to apply for a further visa to allow him to remain in Australia after his previous visa cancellation was remitted by the Tribunal on 13 September 2023. He did not know what type of visa that would be. He hoped that his subclass 457 visa (Temporary Work) would have been restored to him after four years of fighting and he did not understand why or how it was cancelled again on 14 September 2023. He claimed that would not have kept fighting if he did not intend to seek a further visa in Australia. He said it was not safe for him to return to his home country at the moment, and for this reason he had applied for a protection visa. He did not wish to engage with the Tribunal on the reasons for seeking protection and claimed that it was in the protection visa application and he was not feeling well enough to discuss it.

21. The Tribunal is satisfied that the applicant always intended to make an application for a substantive visa. He has, as of 23 October 2023, made an application for a protection visa, which is a substantive visa and is of the kind that can be granted to the applicant while he is in Australia. The applicant told the Tribunal that he had thought he had to get a bringing visa before he could bring any substantive visa application and this was a matter on which he was confused and was seeking advice. He claimed difficulties in obtaining advice as he could not access any computers to do research, he was subject to restricted access and he claimed that this and the difficulties contacting his agent impeded his ability to get advice. He had taken action in the Federal Court to prevent his removal because he wished to apply for a further visa.

22. The applicant requires no further time to apply for a substantive visa. He has made an application for a protection visa on 23 October 2023. The intention to apply for a substantive visa and the act of doing so is consistent with that intention. This is also a kind of visa that can be granted if the applicant is in Australia. It follows that the applicant satisfies cl 500.212(3)(b) and cl 050.212(3) is met as a whole.

23. When the Tribunal attempted to further engage in the applicant in relation to visa conditions it received selected responses which did not meaningfully engage with the issues Throughout the hearing the applicant repeatedly sought to bring proceedings to a close or repeated that he did not have answers for questions. The subsequent submissions provided by the applicant also do not address matters relating to visa criteria in any manner which would assist the Tribunal. These instead focus on the circumstances of his visa cancellation and past employment and migration history. 

24. As the Tribunal was unable to engage with these issues, given the finding above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

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

    ·cl 050. 212(3) of Schedule 2 to the Regulations

    Penelope Hunter
    Member