2402083 (Migration)

[2024] AATA 258

2402083 (Migration) [2024] AATA 258 (15 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2402083

MEMBER:Sean Baker

DATE:15 February 2024

PLACE OF DECISION:  Sydney

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

Statement made on 15 February 2024 at 12:06pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – immigration history – criminal convictions – failure to depart Australia – failure to attend parole appointment – several AVO breaches – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 5, 48, 73
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 051.211

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 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).

2. The applicant applied for the visa on 2 February 2024. 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 7 February 2024 on the basis that there was no evidence that the applicant was making acceptable arrangements to depart nor was there information that he met any of the other grounds on which the visa may be granted under cl 050.212.The applicant appeared before the Tribunal on 14 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether there is a ground for the applicant to be granted the visa.

6. In his application for the visa the applicant indicated that he was applying for the bridging visa on the basis that he wished to apply for a substantive visa, being an employer sponsored visa. In submissions made to the delegate the applicant stated:

   ·     He came to Australia as a student, but he is now an Australian refugee.

   ·     He has developed serious mental illness which has affected all aspects of his life. He has been physically and psychologically ill and at times unemployed.

   ·     He neglected to apply for a further visa, which he regrets.

   ·     He seeks to apply for a spouse visa, family visa, or an employer visa, and a bridging visa.

   ·     Other visas are temporarily unavailable so he is choosing a bridging visa, which will allow him to be lawful in Australia and accelerate his recover from illness.

   ·     He became mentally ill in 2020 and has not stopped treatment since then. The bridging visa will act as a link connecting him to health.

   ·     He wishes to stay in Australia all his life. Fate has conspired against him.

   ·     He has no relatives in China, the bridging visa will determine his choice of life and death.

   ·     After the bridging visa expires, he will continue to apply for other visas to remain lawful. If other visa channels fail he will buy his own ticket and return to China. He will do this in preference to being returned against his will which would severely aggravate his mental illness.

7. After the refusal of the bridging visa, the applicant provided submissions to the Department along the same lines as the above.

8. The applicant has provided several submissions and documents to the Tribunal. These make the same points as his prior submissions to the Department. They include materials which go to his time in Australia but not to the issue in dispute. He has also provided a copy of the delegate’s decision to the Tribunal.

9. The day prior to the hearing, the applicant sent in a submission which was received by the Tribunal on the day of the hearing. This document lays out the applicants mental health illness history. The applicant states that he is suffering from schizophrenia, that he has auditory and visual hallucinations and nightmares and alternating current sounds during the day. He suffers loss of appetite, general weakness, psychological fragility and mental pain. He described his symptoms and the effects they had had on him.

10. The applicant has claimed to have a serious mental illness. At the beginning of the hearing, I noted this and noted that any reasonable adjustments could be made to the hearing. The applicant indicated and I observed that he was able to follow what was happening and responded cogently and coherently to the questions asked, sought clarification and asked follow up questions. I consider that the applicant had capacity and was able to fully engage at the hearing and in the review more broadly.

11. At the hearing the applicant set out his immigration history – he had come to Australia in August 2018 on a student visa. He had studied language and then a professional major, but his enrolment had been cancelled when he did not pay his fees. His visa was cancelled. he continued working but did not hold a visa. In October 2020 he said he had applied for a protection visa, and this had been refused by the Department. I asked if he had applied for any other substantive visas since then and he said he had not, but had applied for this bridging visa in immigration detention. He confirmed he had been detained [in] January 2024 and had applied for the bridging visa on 2 February 2024.

12. I explained the requirement for an applicant to meet one of the grounds in cl 050.212. I noted to him that from what he had provided to me it appeared that cl 050.212(2) and cl 050.212(3) were most relevant to his case. I explained these criteria to the applicant. I then noted that from the material before me it appeared that he did not wish to voluntarily depart Australia. The applicant agreed, stating that he would like to stay in Australia.

13. I asked the applicant to confirm whether he had made a substantive visa application from detention and he said he had not. I explained that there were several difficulties with his claim that he wished to apply for a substantive visa. I explained that, as the delegate had noted, s 48 and s 48A appeared to apply to the applicant because he had been refused a protection visa and had had his student visa cancelled, significantly limiting the classes of visa he could apply for. He said he wanted to go out from detention and apply for an employer sponsored visa if he could get one. The applicant said that he had mental illness which made his circumstances quite exceptional. I noted that this must make his circumstances very difficult. I asked if he had access to the counsellor in the detention facility and he said he did.

14. I discussed with the applicant the visas that he considered he applied for. I noted that the applicant had not provided any information that he had an Australian citizen or permanent resident spouse, that he had family in Australia. The applicant did not directly respond.

15. I asked the applicant if he had an employer nomination or sponsorship. He said he did not, he had been talking to his employer but they were still talking and had not reached a conclusion. I noted that I may not be satisfied that he had or would apply for any of the visas he had indicated, nor was I satisfied that he would be able to given the bars on further applications  in s 48 and s 48A appeared to apply to him.

16. The applicant sought time to provide further information, which I agreed to.

    He provided a submission in response to the concerns raised at the hearing. In this response, he attempted to explain how he could satisfy the criterion in dispute. He said that as a mental health patient, different from other diseases, and he needed to have his survival and legal rights protected. He did not have enough money to buy a ticket and needed to be released so he could earn money by working. He fears his illness will lead to physical collapse and death. He claimed that he had been trying to apply for a spouse visa for many years, he had a girlfriend in Brisbane and his relationship was developing and he needed to go out on parole to communicate with is girlfriend and get her understanding and support before she could apply for a spouse visa.

    The grounds for seeking the visa - cl 050.212

17. 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.

18. In this case, the applicant is seeking to meet cl 050.212(3). I also discussed with him his capacity to meet cl 050.212(2)The applicant does not claim to meet any of the other alternative criteria in cl 050.212.For the reasons below, the applicant does not meet cl 050.212.

    Substantive visa application

19. 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.

20. ‘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.

21. The difficulties with the applicant meeting this ground have been explained to him by the delegate at interview. I also explained to him the difficulties. The applicant is subject to s 48 and s 48A. This dramatically limits the range of visas the applicant may apply for. More fundamentally, as I discussed with the applicant, I did not have from the applicant any evidence other than his assertions that he had a spouse, family in Australia, or a nomination from his employer. The applicant has said that he has a girlfriend in Brisbane. He has said he is speaking with his employer about the potential for sponsorship. But he has not provided any further evidence of this. The applicant confirmed that he had not applied for a substantive visa. He sought the bridging visa on the basis that he would apply for a substantive visa application, but other than his assertions he has not provided any evidence that he is in the process of or could make an application for this type of visa.

22. I am not satisfied that the applicant has made, or would apply for any type of substantive visa within any reasonable period were he to be granted the bridging visa. His plans for applying for other visas are at such a vague, imprecise and rudimentary stage that I am not satisfied the he would apply for any of the visas he has mentioned. He claims to have been considering applying for a spouse visa for some time, but has not provided any evidence to substantiate this other than his assertions. He claims that he has been in discussion with his employer about possible sponsorship but again has not provided any evidence to substantiate this other than his assertions. He has not provided any information to substantiate his claim that he could apply for a family visa.

23. I accept that the applicant wishes wholeheartedly to be released from detention. I accept that his serious mental illness would make the impact of his detention very onerous. I have considerable sympathy for the situation of the applicant.

24. However, I consider that this criterion requires more than the applicant’s assertions, without more, that he may be in a position to make a valid application at some indeterminate point in time. I am not satisfied on what the applicant has provided to me that he would make an application for a substantive visa of a kind that can be granted if the applicant is in Australia within a period specified for doing so were he to be granted the visa.

25. Accordingly, the applicant does not meet cl 050.212(3).

    Acceptable arrangements to depart Australia

26. Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. 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]).

27. In this case the applicant has consistently stated that he does not wish to depart Australia. At the hearing he did say that, were his visa options to be exhausted, he would depart voluntarily and would prefer this to being involuntarily removed which he believed would exacerbate his mental health symptoms. However, the applicant has not been able to provide any concrete, tangible information that he is making, rather than planning in some speculative sense, to depart Australia. On the information presently before me I am not satisfied that the applicant is making or is the subject of acceptable arrangements to depart.

28. For these reasons, the Tribunal is not satisfied that at the time of application the applicant was making or was the subject of acceptable arrangements to depart Australia. Therefore the applicant does not meet cl 050.212(2).

    Conclusions

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

30. The visa application is also an application for 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

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

    Sean Baker
    Member