2318119 (Migration)

[2024] AATA 895

2318119 (Migration) [2024] AATA 895 (10 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Mohammed Nasir ULLAH

CASE NUMBER:  2318119

MEMBER:Bridget Cullen

DATE:10 April 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the Applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 10 April 2024 at 12.11pm

CATCHWORDS

MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicant for a Temporary Protection visa – procedurally complex case history – protection visa review application considered invalid – substantive application for review was still progressing – power to cancel the visa does not arise – decision under review set aside  

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109, 116, 415
Migration Regulations 1994, r 2.08

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 dated 8 November 2023 made by a Delegate of the Minister for Home Affairs to cancel the Applicant’s Subclass 050 (Bridging (General)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The Delegate cancelled the visa under s 116(1)(aa) on the basis that an assessment of the Applicant’s immigration history found that he was not an applicant for a Temporary Protection visa at the time of his Subclass 050 (Bridging (General)) visa grant. As such, the circumstances that permitted the grant of the bridging visa did not exist. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The Applicant appeared before the Tribunal on 2 April 2024 to give evidence and present arguments. The hearing was conducted jointly with the related reviews in Matter 2318122 ([Wife A], the Applicant’s wife) and Matter 2318124 ([Son A], the Applicant and [Wife A’s] son). Both [Wife A] and [Son A’s] Subclass 050 (Bridging (General)) visas were also cancelled under s 116, for identical reasons. The Applicant, [Wife A], and [Son A] consented to the Tribunal hearing their matters jointly. The Tribunal received oral evidence from both [Wife A] and [Son A] at the hearing.

4. The Applicant was represented in relation to the review. The representative did not attend the hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the Applicant’s visa should be set aside and substituted with a decision not to cancel the Applicant’s Subclass 050 (Bridging (General)) visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(aa). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Procedural history and timeline

7. The Applicant, his wife [Wife A], and their son [Son A] (just [age] at the time) arrived in Australia [in] December 2012, by boat. They did not have valid visas at the time of arrival. Subsequently, on 9 July 2013, the Applicants applied for Subclass 866 Protection (Class XA) visas, asserting that they could not safely return to Bangladesh.

8. While awaiting the outcome of their protection visa applications, the Applicant and [Wife A’s] family expanded. They welcomed [names and years of birth]. As dependents of the Applicant and [Wife A], [these children] were added to the protection visa application. The Applicant and [Wife A] have [number] children in total – the youngest [children] have not been added to the protection visa application. These children are [names and years of birth].

9. On 3 February 2015, the Department refused the applications for protection visas. The matter has since had a long, and procedurally complex journey through the Tribunal and Court system.

10. On 12 March 2015, the Applicant applied for merits review of the Delegate’s decision to refuse the protection visa application. The Tribunal (Member Syme) affirmed the Delegate’s decision on 30 June 2016 in AAT case number 1503565. 

11. The Applicant appealed the 30 June 2016 decision to the Federal Circuit Court of Australia (as it was then). [In] September 2016, consent orders were made by the Federal Circuit Court as follows (relevantly):

    1.It is declared that the applicants’ applications for Protection (Class XA) visas are, by operation of regulation 2.08F of the Migration Regulations 1994 (Cth) taken to be, and to always have been, applications for Temporary Protection (Class XD) visas.

    2.A writ of certiorari issue directed to the Second Respondent quashing its decision dated 30 June 2016 (AAT case number 1503565).

    3.A writ of mandamus issue to compel the Second Respondent to reconsider and redetermine the matter according to law by exercising its powers under section 415(2) of the Migration Act 1958 (Cth) (the Act); namely, either section 415(2)(c), section 415(2)(d), or section 415(2)(e) of the Act.

12. On 21 September 2016, the Tribunal wrote to the Applicant and advised that the Federal Circuit Court had quashed the decision in AAT case number 1503565 and remitted the Applicant’s protection visa application back to the Tribunal. The Tribunal then created AAT case number 1615304 for these purposes.

13. On 25 January 2017, the Tribunal (Member Cranwell) conducted a hearing in AAT case number 1615304 in relation to the 3 February 2015 refusal by the Department to grant the Applicant (and his family) protection visas. The Tribunal delivered the decision in AAT case number 1615304 on 7 February 2017. The decision was to set aside the decision refusing to grant the Applicant (and his family) Protection (Class XA) visas and substituting a decision that the application for protection visas was not valid and could not be considered.

14. The Minister made an interlocutory application in AAT case number 1503565, which resulted in the consent orders made by the Federal Circuit Court [in] September 2016 (set out in paragraph 11 above) being set aside. The Federal Circuit Court’s Order, dated [in] April 2018, also resulted in directions being made to progress the Applicant’s appeal in AAT case number 1503565.

15. The Federal Circuit Court dismissed the application for review in relation to AAT case number 1503565 [in] April 2019: [citation deleted]. The Applicant appealed this decision to the Federal Court, and the Federal Court ordered that the Tribunal’s decision be quashed and the case be remitted to the Tribunal for reconsideration: [citation deleted]. The Tribunal, in response to the Federal Court’s decision in relation to AAT case number 1503565 created AAT case number 2011441.

16. On 26 March 2018, the Minister sought judicial review of the 7 February 2017 decision of the Tribunal (Member Cranwell) in AAT case number 1615304. By consent, [in] April 2018, the Federal Circuit Court ordered that the 7 February 2017 decision of the Tribunal (AAT case number 1615304) be quashed.

17. On 31 July 2018, the Tribunal sent the Applicant a letter advising that the Federal Circuit Court had remitted his Application to the Tribunal, for reconsideration. The Tribunal then created AAT case number 1822107 in order to reconsider the application. Unfortunately, this was done in error. The orders of the Federal Circuit Court did not remit the application in AAT case number 1615304 for review to the Tribunal for reconsideration. Instead, by consent, [in] April 2018, the Federal Circuit Court ordered that the 7 February 2017 decision of the Tribunal in 1615304 be quashed.

18. The Tribunal then wrote to the Applicant to advise that it was closing the file in AAT case number 1822107, and advised the Applicant that AAT case number 2011441 would proceed – this being the remittal by the Federal Court back to the Tribunal for reconsideration following the decision in [citation deleted] (originating from AAT case number 1503565).

19. The review in AAT case number 2011441 proceeded, and on 18 November 2022, the Tribunal affirmed the decision made by the Department to refuse to grant the Applicant a protection visa. As far as the Tribunal is aware, this decision has not been appealed by the Applicant.

20. The Applicant applied for Ministerial Intervention, which was acknowledged by the Department [in] March 2023.

    Does the ground for cancellation exist?

    s 116(1)(aa) – Fact or Circumstance for visa grant did not exist

21. A visa may be cancelled under s 116(1)(aa) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist.

22. The Applicant was granted a Bridging Visa E on 4 February 2019 on the basis that the Department understood that the Applicant had applied for a Temporary Protection visa. However, in October 2019 the Department identified that this was not the case and wrote to the Applicant notifying him of its intention to cancel the visa.

23. The Delegate provided the following reasons for concluding that there are grounds for cancellation:

    The legal practitioner submits that the visa holder was never advised by his former migration agent, [Name Redacted], that he was required to lodge an application for a Temporary Protection (class XD) following the AAT decision to set aside the decision to refuse the visa holder’s Protection (class XA) visa on 05 February 2017. The AAT determined that the visa holder’s application for a Protection (class XA) visa, was not valid, and therefore could not be considered.

    As such, the visa holder did not lodge a valid application for a Temporary Protection (class XD) visa. I note that the legal practitioner submits that the visa holder’s “previous visa E” (referring to a Bridging E visa) was cancelled, however departmental records do not reflect that a visa cancellation matter has previously been considered. Rather, the visa holder’s previous Bridging E visas have ceased in accordance with the legislation.

    Reasonably, I continue to rely on departmental records, which indicate that at the time the visa holder was granted his current Bridging E visa, he was not an applicant for a Temporary Protection visa.

24. The Delegate’s reasons place reliance upon the decision made by the AAT (Member Cranwell) on 7 February 2017, wherein the Tribunal set aside the decision to refuse the protection visa application, finding that the application was invalid, in Matter 1615304. Although the Delegate referred to the “05 February 2017” decision, the Tribunal presumes that this was a typographical error meant to read “7 February 2017”.

25. The information considered by the Delegate does not reflect the full scope of the Applicant’s complex litigation history. The Delegate did not consider that AAT case number 1503565 was still meandering its way through the court system and ultimately back to the Tribunal. The Applicant was an applicant for a Subclass 866 Protection (Class XA) visa between the dates of 9 July 2013 and 18 November 2022, in relation to AAT case number 1503565.

26. At the point in time that the Applicant made application for the Bridging visa that is the subject of this decision (4 February 2019), the Applicant’s substantive application for review was still progressing through the Federal Circuit Court, in relation to AAT case number 1503565.

27. Ultimately, as set out in the procedural history above, the Federal Circuit Court ordered that the 7 February 2017 decision of the Tribunal (AAT case number 1615304) be quashed. The Federal Circuit Court made this order [in] April 2018, some years prior to the decision by the Delegate to cancel the Applicant’s Bridging visa. Therefore, there should have been consideration given by the Delegate to the impact of the Federal Circuit Court Orders made following the Minister’s interlocutory application in AAT case number 1503565, which resulted in the consent orders made by the Federal Circuit Court on [in] September 2016 being set aside. The Delegate refers only to the Federal Circuit Court Order dated [in] September 2016, and does not refer to the [April] 2018 Federal Circuit Court Order.

28. The decision that the Delegate based the determination that a ground for cancellation existed upon is a nullity, having been quashed by the Federal Circuit Court [in] April 2018. It cannot therefore now be said that the Applicant should have lodged an application for a “Temporary Protection (class XD) following the AAT decision to set aside the decision to refuse the visa holder’s Protection (class XA) visa on 05 February 2017”. The impact of the Court’s decision to quash this decision is that the proceedings in relation to that decision are of no legal effect.

29. At the time of the Delegate’s decision, the Tribunal’s decision in AAT case number 1615304 was of no legal effect, having been quashed, and therefore it cannot be said that the Applicant had an obligation to apply for a Temporary Protection visa, particularly given that he was an Applicant for a permanent protection visa in relation to AAT case number 1503565.

30. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s 116(1)(aa) exists. It follows that the power to cancel the Applicant’s visa does not arise.

    DECISION

31. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the Applicant’s Subclass 050 (Bridging (General)) visa.

    Bridget Cullen
    Senior Member