2318216 (Migration)

[2023] AATA 4712

2318216 (Migration) [2023] AATA 4712 (27 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2318216

MEMBER:Nathan Goetz

DATE:27 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision of the delegate dated 4 November 2023 refusing to grant the applicants Bridging B (Class WB) visas and remits the visa applications back to the delegate for reconsideration, with a direction that the applicants satisfy the following criteria for the grant of the visa:

·Cl 020.212(2) of Schedule 2 to the Migration Regulations 1994 (Cth)

DIRECTION:  The Tribunal directs under s 378(1) of the Migration Act 1958 (Cth) in relation to this review that information that would identify the applicants must not be published by the Tribunal.

The Tribunal is satisfied it is in the public interest that this material is not published because it would unreasonably reveal information about the protection visa applications lodged by the applicants (noting a number of provisions in the Migration Act 1958 (Cth) restrict publishing material that identifies protection visa applicants: e.g., ss 91X, 431 and 501K).

Statement made on 27 November 2023 at 11:28am

CATCHWORDS
MIGRATION –Bridging B (Class WB) visa– Subclass 050 (Bridging (General)) – applicant’s mother is sick with both physical ailments as well as dementia – medical evidence provided – applicant has a substantial reason for leaving Australia and returning – genuine intention to travel – decision under review remitted

LEGISLATION
Migration Act 1958, ss 73, 360
Migration Regulations 1994, Schedule 2, cl 020.212

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 merits 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 applicants Bridging B (Class WB) visas.

   BACKGROUND

2. The applicant identifies as a married couple, [Mr A], a male citizen of India presently located in Australia and [Ms B], a female citizen of Indian presently located in Australia.

3. On 1 July 2019 the applicants were both granted visitor visas to come to Australia. On [date] July 2019 the applicants arrived in Australia holding those visas which were valid until [date] October 2019.

4. On 24 September 2019 the applicants applied for protection visas. They were granted Bridging A (Class WA) visas to regularise their migration status in Australia until their protection visa applications were finally determined.

5. On 22 April 2022 [Ms B] was granted a Bridging B (Class WB) visa. This caused her Bridging A (Class WA) visa to cease. She departed Australia on [date] April 2022 and returned to Australia on [date] June 2022. That visa had a condition attached which prohibited the applicant returning to Australia after 10 October 2022.

6. On 5 January 2023 the applicants were granted Bridging B (Class WB) visas. This caused [Mr A]’s previous Bridging A (Class WA) visa to cease. On [date] January 2023 the applicants departed Australia and they returned to Australia on [date] February 2023. They remain on those existing Bridging B (Class WB) visas to date. Each of those bridging visas have a condition attached which prohibited the applicants returning to Australia after 20 February 2023.

7. On 11 September 2023 [Ms B] applied for the bridging visa that is the subject of this decision record. On 18 October 2023 [Mr A] applied for the bridging visa. At the time the visa applications were made, the criteria for Class WB visas are set out in Subclass 020 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

8. On 4 November 2023 the delegate refused to grant the applicants the visas on the basis that they did not satisfy cl 020.212 of Schedule 2 to the Regulations.

9. On 10 November 2023 the applicants applied to the Tribunal for review of the decisions.

10. On 22 November 2023 the Tribunal wrote to the applicants and indicated that the Tribunal could hold a Tribunal hearing on 27 November 2023 if that was suitable to them. On 22 November 2023 the applicant’s responded to the Tribunal indicating that this was suitable for them.

11. On 22 November 2023 the Tribunal wrote to the applicants under s 360(1) of the Act and invited them to appear at a Tribunal hearing scheduled for 9:30am on 7 November 2023. The Tribunal determined that the Tribunal hearing occurring by MS Teams was appropriate in all the circumstances.

12. On 27 November 2023 the applicants appeared at the Tribunal hearing, as did their daughter Dr [C], appeared via MS Teams from the family home in Kerala state, India. Both applicants and their daughter gave oral evidence to the Tribunal.

13. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Malayalam languages.

    CRITERIA FOR THE GRANT OF THE VISA

    020.212 

    (1)  The applicant meets the requirements of subclause (2), (3), (4) or (5).

    (2)  An applicant meets the requirements of this subclause if:

    (a)  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

    (b)  that application has not been finally determined; and

    (c)  the applicant wishes to leave and re-enter Australia during the processing of that application; and

    (d)  the Minister is satisfied that the applicant's reasons for wishing to do so are substantial.

    (3)  An applicant meets the requirements of this subclause if:

    (a)  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

    (b)  that application was refused; and

    (c)  either:

    (i)  the applicant, or the Minister, has applied, within statutory time limits, for judicial review of a decision in relation to the applicant's substantive visa application, and the judicial review proceedings (including proceedings on appeal, if any) have not been completed; or

    (ii)  the applicant:

    (A)  is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in subparagraph (i); and

    (B)  made a substantive visa application that was combined with the substantive visa application mentioned in subparagraph (i); and

    (d)  the applicant wishes to leave and re-enter Australia during the judicial proceedings; and

    (e)  the Minister is satisfied that the applicant's reasons for wishing to do so are substantial.

    (4)  An applicant meets the requirements of this subclause if:

    (a)  the applicant has made a valid application for a Partner (Migrant) (Class BC) visa; and

    (b)  the application has not been finally determined; and

    (c)  the applicant wishes to leave and re-enter Australia during the processing of that application; and

    (d)  the Minister is satisfied that the applicant's reasons for wishing to do so are substantial.

    (5)  An applicant meets the requirements of this subclause if:

    (a)  the applicant has made a valid application for a Partner (Migrant) (Class BC) visa; and

    (b)  that application was refused; and

    (c)  either:

    (i)  the applicant, or the Minister, has applied, within statutory time limits, for judicial review of a decision in relation to the applicant's substantive visa application; or

    (ii)  the applicant:

    (A)  is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in subparagraph (i); and

    (B)  made a substantive visa application that was combined with the substantive visa application mentioned in subparagraph (i); and

    (d)  the judicial review proceedings (including proceedings on appeal, if any) are not completed; and

    (e)  the applicant wishes to leave and re-enter Australia during those proceedings; and

    (f)  the Minister is satisfied that the applicant's reasons for wishing to do so are substantial.

14. The applicants are required to satisfy cl 020.212 at the time of visa application: cl 020.21 and at the time a decision is made: cl 020.221.

    CONSIDERATION OF MATERIAL

15. In the visa application form lodged by [Ms B] in September 2023, she indicated that the purpose of the trip to India was to look after her mother, who has broken ribs and a fracture.  The proposed departure date from Australia was 10 October 2023 and the proposed return dated was 1 April 20124. It was suggested that her mother’s health is so dire that she wished to kill herself to avoid pain. She has difficulty walking and needs to be nursed. She was admitted to hospital and, according to [Mr A]’s visa application, is now in palliative care at [a hospital], Kerala state, India. It was suggested that the applicants had previously returned to India and stayed there for 40 days to look after her.

16. In the visa application form lodged by [Mr A] in November 2023, the applicant indicated that both he and his wife were seeking the bridging visa for permission to depart Australia on[date] December 2023 and travel to India with a proposed date of return is [date] January 2024. It identified that his wife’s mother was now in palliative care, and that her last wish was to see her granddaughter, Dr [C], who is the applicant’s daughter, get married. The wedding to Mr [D] was organised at short notice and was scheduled for 30 December 2023.

17. Both of those visa application forms identified that the applicants had applied for protection visas in Australia. The Tribunal was told that no decision had been made by a delegate concerning whether the applicants met the criteria for a protection visa, which is consistent with the Departmental records. The Tribunal was told that the protection visas were lodged because [Mr A]’s was a [occupation] who investigated clashes between Hindus and Muslims in 1991 and between Hindus and Christians in 1993 and that since his retirement [in] 2015 [Mr A] ha faced difficulties from Hindus.

18. In support of the purposes for travel back to India, the applicants provided several documents, including:

    ·     A photo of a woman who was laying down in a bed who was identified as [Ms B]’ mother.

    ·     A receipt from [a] Convention Centre dated 21 March 2023 acknowledging receipt of an advance (deposit) of INR50,000 for an *illegible* on 31 December 2023. The advance was received from Mr [E].

    ·     An invitation to the wedding of Dr [C] and Mr [D] which was to be solemnized at [a] Catholic Cathedral in [Kerala] state, India on 30 December 2023 with a reception at [a] Convention Centre to follow.

    ·     A a flight booking for the applicants with [an airline] departing Sydney, Australia on [date] December 2023 to [Country 1] and then from [Country 1] to [Kerala] State, India.

19. When the applicants applied to the Tribunal for review of the decisions, they provided the Tribunal with a document signed by [a doctor] of [a] Hospital, [dated] 7 November 2023. That document stated that [Ms B] ‘mother continues to be in a very critical stage with dementia. The report detailed that many internal organs had been affected and she has a poor response to medicines with her condition deteriorating. It suggested that family members rush to see her.

20. At the Tribunal hearing, the Tribunal was told that the proposed wedding of Dr [C] on 31 December 2023 had been cancelled. It was an arranged marriage but was cancelled one week prior to the Tribunal hearing because the purpose of the wedding being organised so quickly was to enable [Ms B]’ mother to attend as it was her wish to see her granddaughter get married. The Tribunal was told, however, that as [Ms B]’ mother’s medical condition is now so dire she does not always know who her granddaughter is. It is therefore unlikely that she would be able to attend the wedding in any event. The purpose of the trip is now singularly for the applicants to visit and provide carer for [Ms B]’ mother. [Mr A]’s oral evidence was that he had no parents of his own and that his mother-in-law is very important to him.

21. The Tribunal was told that [Ms B]’ mother’s mother has now been released from hospital. She has been out of hospital for one month following a two-month admission and is back at her own home in Kerala state, India. Care is provided to her by a nurse, and the applicant’s daughter visits her to provide some medical assistance, although this can be difficult because her grandmother does not recognise her and disengages when her grandmother assumes that her granddaughter is her daughter and is advised to the contrary.

22. The Tribunal was told that on each occasion that the applicants have returned to India they stayed [Ms B]’ mother’s place in Kerala, India and that the purposes of those visits was to see [Ms B]’s mother.

    FINDINGS AND REASONS

23. The issue in this review is whether the applicants satisfy any of the paragraphs of cl 020.212 of Schedule 2 to the Regulations.

24. If the Tribunal is satisfied that the applicants meet any of the requirements of cl 020.212 of Schedule 2 to the Regulations, then the correct or preferable decision is to set aside the delegate decision of 4 November 2023 and remit the visa applications back to the delegate for reconsideration with a direction concerning the criteria of the visa that the Tribunal has determined the applicants satisfy.

25. If the Tribunal is not satisfied that the applicants meet any of the requirements of cl 020.212 of Schedule 2 to the Regulations, then the correct or preferable decision is to affirm the delegate decision of 4 November 2023 refusing to grant the applicants Bridging B (Class WB) visas.

26. For the following reasons, the Tribunal has decided to set aside the delegate decision.

27. As the applicants have lodged protection visas which have not been the subject of a decision by a delegate, cl 020.212(3) is not applicable because the visas have not been refused. On the basis of the type of visas that the applicants have applied for, cl 020.212(4) and (5) are not applicable.

28. As the applicants applied for protection visas, which are substantive visas, and a decision on those visa applications remain outstanding, the Tribunal must consider whether the applicants satisfy cl 020.212(2).

29. The Tribunal accepts that the applicants have expressed a desire to leave Australia and re-enter Australia during the processing of those protection visa applications.

30. The question is whether the Tribunal is satisfied that the applicants’ reason for leaving Australia and re-entering Australia are substantial.

31. The Tribunal has considered the Department Procedural Instruction Guidance on Subclass 020 (Bridging B) visas (VM-966) issued on 1 January 2022.

32. The Guidance provides that travel, when connected with family, relatives or other people important an applicant, includes visiting a seriously ill family member, relative or close friend, attending a wedding, or a culturally important event of a family member, relative or close friend, such as a funeral.

33. That Guidance provides that as a matter of policy, substantial reasons for wishing to trave would include travel associated with an applicant’s employment in business or education, an applicant’s family, other relatives or other persons important to the person, or connected with the applicant’s substantive visa application. The Guidance notes that the migration legislation does not define “substantial” in the context of a Bridging B visa application, and that the ordinary meaning of “substantial” is “real”, “actual”, “important” and “of real worth or value”. It does on to advise that for example, if a person applied for a bridging B visa on the basis that their parent was very sick, the reason could be considered sufficiently “important”, but the decision-maker must also be satisfied that the reason is “real”, i.e. that there is evidence the parent is outside Australia and is actually suffering from an illness or injury.

34. The delegate decision does not address whether the delegate considered this Guidance and if the delegate did, why the delegate determined that the Guidance should not be followed. The decision record does not suggest that the applicants claimed reasons for travel were untrue, but only makes a mention that ‘the applicants protection visa application is in the early stages and has not yet been assessed. At this stage, travel is limited to emergencies only.’ The Tribunal could not find anything in the Guidance that suggests that reasons are only substantial if it is an emergency in the context of people who have applied for a protection visa that is ‘still in the early stages’ of an assessment by a delegate.

35. The Macquarie Dictionary defines ‘substantial’ to include of real worth or value, and of solid character or quality. This is reflected in the Guidance. As the wedding was apparently organised at short notice, and was not put forward as a reason for travel in the oral evidence, the Tribunal wondered whether it had been contrived in order for the bridging visas to be granted. However, the Tribunal was told that the wedding had been cancelled because of the dire health of [Ms B]’ mother, and given that she would apparently not be either able to attend, or be aware that it was occurring due to her dementia, the Tribunal is satisfied that it can draw no adverse inference against the applicants concerning the wedding or its cancellation.

36. The evidence is that [Ms B]’s mother is sick with both physical ailments as well as dementia. The Tribunal accepts on the basis of the oral evidence and corroborative documents that [Ms B]’ mother’s mother is sick as claimed. The Tribunal is satisfied that it is important for both applicants to see and provide care for [Ms B]’ mother in India. The Tribunal is satisfied that caring for a sick family member with the type of illness that [Ms B]’ mother has is a substantial reason for leaving Australia and returning.

    DECISION

37. The Tribunal sets aside the decision of the delegate dated 4 November 2023 refusing to grant the applicants Bridging B (Class WB) visas and remits the visa applications back to the delegate for reconsideration, with a direction that the applicants satisfy the following criteria for the grant of the visa:

    · Cl 020.212(2) of Schedule 2 to the Migration Regulations 1994 (Cth).

    Nathan Goetz

    
    

    Member