De Abrew Abeysundara (Migration)

[2022] AATA 3500

De Abrew Abeysundara (Migration) [2022] AATA 3500 (19 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chamani Dinusha De Abrew Abeysundara

REPRESENTATIVE:  Ms Rachel Magill

CASE NUMBER:  2119135

HOME AFFAIRS REFERENCE(S):          BCC2020/2019425

MEMBER:Nathan Goetz

DATE:19 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.

Statement made on 19 August 2022 at 5:50pm

CATCHWORDS
MIGRATION – cancellation – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – grant of visa based on fact or circumstance that did not exist – primary criteria that application for substantive visa made and not finally determined – dependent on husband’s student visa application – applications refused – previous agent lodged review application for husband but not for applicant – current agent’s attempts to remedy situation – discretion to cancel visa – ground for cancellation conceded – request for referral for ministerial intervention not granted – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116(1)(aa), 359(2), 360(1), 351
Migration Regulations 1994 (Cth), Schedule 2, cl 020.212(2)

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 13 December 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 020 (Bridging B) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant was represented in the review application by registered migration agent 0601736.

   BACKGROUND

3. On 13 December 2021 the delegate cancelled the applicant’s Bridging B visa under s 116(1)(aa) of the Act.

4. On 14 December 2021 the applicant applied to the Tribunal for review of the decision. At that time, she was represented by Ms Christine Brophy, an Australian legal practitioner.

5. On 22 July 2022 the Tribunal wrote to the applicant for two reasons.

6. The first reason was to invite the applicant under s 360(1) of the Act to appear at a Tribunal hearing at 10:00am on 18 August 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do so because the Tribunal decided that it should not decide the review application in the applicant’s favour on the basis of the material it had.

7. The second reason was to invite the applicant under s 359(2) of the Act to provide the Tribunal with information by 5 August 2022. The request for information is detailed later in this decision record.

8. Prior to this information being provided, the Tribunal received a form appointment Ms Magill as the applicant’s representative. The Tribunal was asked for a postponement of the Tribunal hearing on the basis of the recent appointment and Ms Magill, who wanted time to request materials.

9. The Tribunal considered this request but was not persuaded to postpone the Tribunal hearing because a failure to provide the information requested under s 359(2) would result in the Tribunal hearing being cancelled, meaning a postponement request would be unnecessary.

10. On 4 August 2022, the representative advised Tribunal staff that the applicant conceded that the Bridging B visa should be cancelled but wanted an opportunity to put forward circumstances about why the Member should consider referring the visa application to the Minister under s 351 of the Act. The representative suggested that the applicant may waive the requirement for holding the Tribunal hearing if an extension of time would be granted for written submissions to be provided about the request.

11. The Tribunal did not agree to this request for reasons detailed in this decision record.

12. On 5 August 2022, the applicant’s previous representative, Ms Brophy, provided a response to the request for information.

13. On 9 August 2022, the Tribunal advised the applicant that the Tribunal hearing had been rescheduled and was abridged to 10:00am on 15 August 2022.

14. On 15 August 2022 the applicant appeared at the Tribunal hearing. Her husband also appeared at the Tribunal hearing. The applicant’s migration agent Ms Magill attended the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese language.

15. The Tribunal hearing was conducted by telephone as the applicant was in Victoria and the Member was in New South Wales.

16. The applicant requested that the Tribunal take oral evidence from her spouse at the Tribunal hearing. The Tribunal did not accede to this request because the Tribunal was not satisfied that the applicant’s husband would raise any matter that would not be raised by the applicant.

    CRITERIA FOR CANCELLATION OF THE VISA

17. 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(aa).

18. 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.

19. 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.

20. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    CONSIDERATION

21. The applicant identifies as a 43-year-old female citizen of Sri Lanka presently located in Australia.

22. According to the delegate decision, which the Tribunal accepts as an accurate chronology of the applicant’s migration history, on 30 September 2017 the applicant’s spouse Mr Irosh Sampath Peduru Ranepura Hewage (‘Mr Peduru Ranepura Hewage’) applied for a Student (subclass 500) visa.

23. The applicant made a student visa application as a dependent because she was a member of the family unit of her spouse. She was granted a Bridging A visa on 30 September 2017 to regularise her migration status while the student visa application was being considered.

24. On 17 December 2017 the applicant’s spouse had his student visa application refused. As a result, the applicant’s student visa application was also refused. On 7 January 2018 the applicant’s spouse applied to the Tribunal for review of the decision to refuse to grant him a student visa. The applicant did not lodge a review of the decision to refuse to grant the applicant the student visa. As a result of the applicant not lodging a review of the decision to refuse to grant her the student visa, any bridging visa she held would have expired 35 days after the student visa application was considered to be ‘finally determined.’

25. On 15 June 2018, the applicant applied for a Bridging B visa to depart and return to Australia. In the Bridging B visa application form. She was granted that Bridging B visa that same day. That is the Bridging B visa that is the subject of the review.

26. A search of Department records demonstrates that on 8 August 2019 the Tribunal remitted the applicant’s spouse’s student visa application for remittal with a direction that he satisfied cl 500.212 of Schedule 2 to the Regulations: AAT case 1800505. On 20 November 2019 the applicant was granted the student visa. That visa ceased on 14 October 2020.

27. On 30 March 2021 the applicant’s spouse was granted another student visa. That visa ceased on 14 September 2021.On 13 September 2021 the applicant’s spouse applied for a Skilled (Onshore) (Graduate work stream) (VC 485) visa application. No decision has been made on that visa application to date. The applicant’s spouse has been granted a Bridging E visa to regularise his migration status in Australia until that visa application is finally determined.

    Does the ground for cancellation exist?

28. The applicant was granted the Bridging B visa on 18 June 2018 on the basis that she had applied to the Tribunal for review of the decision to refuse to grant her the student visa.

29. The primary criteria for the grant of a Bridging B visa are that 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: cl 020.212(2). ‘Finally determined’ is defined to mean either a decision made by the Tribunal on review of the decision, or in the event that no valid review application has been made, at the expiration of the time limit the applies for making a review application.

30. Because the applicant did not lodge a review with the Tribunal of the decision to refuse to grant her a student visa, the grant of the Bridging B visa was made on a fact that did not exist. The applicant conceded that this was the case.

31. For this reason, the Tribunal is satisfied that the ground for cancellation in s 116(aa) of the Act exists.

32. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

33. In accordance with the Department policy, the Tribunal has considered the following matters:

    The purpose of the visa applicant’s travel and stay in Australia

34. The applicant arrived in Australia on 15 February 2010 holding a student visa which was granted on the basis that she was the spouse of her husband. She was subsequently granted a five further student visas. All of the substantive visas held by the applicant have been granted on the basis that she is a ‘dependent’ on her spouse who holds a visa.

35. The Tribunal accepts that the applicant came to Australia to be with her spouse and that the basis of her stay in Australia is to remain with her husband. The applicant told the Tribunal about her attempts to start a family with her husband and that she is currently going through IVF.

    The extent of compliance with visa conditions

36. There is no evidence available to the Tribunal to suggest that the applicant has not complied with any conditions that attached to any visa she has held in Australia.

    The degree of hardship that might be caused

37. The applicant told the Tribunal that she currently works as a cashier at Woolworths Supermarkets and rents a home in Box Hill, Victoria. She remains with her husband. While the Tribunal was not provided with details about the applicant and her husband’s financial situation, the Tribunal accepts that in the event the Tribunal upholds the delegate decision, there is a possibility that the applicant will be required to cease working and return to Sri Lanka. The Tribunal accepts that hardship may flow to the applicant and her husband as a result of their separation.

    The circumstances in which the ground of cancellation arose

38. The Tribunal accepts that the applicant did not engage in dishonest conduct to obtain the grant of the Bridging B visa. In the written submission provided to the Tribunal, it was submitted that the circumstances arose because the applicant’s previous migration agent (which was neither Ms Brophy nor Ms Magill) had not lodged a review of the applicant’s student visa refusal and had only lodged a review of her spouse’s student visa refusal.

39. The Tribunal is prepared to accept that either the previous migration agent had instructions to lodge a review of applicant’s student visa refusal and did not do so by error, or that there was an understanding by the applicant that lodging a review of the spouse’s student visa refusal decision would also mean that her own student visa refusal would also be considered.

40. In contrast to a person who has been dishonest in applying for a visa, the Tribunal accepts that the applicant’s ground for cancellation arose in circumstances that where applicant believed, clearly erroneously, that she had also applied to the Tribunal for review of the decision.

41. This conclusion is supported by the various attempts made by the applicant through Ms Brophy to attempt to remedy the applicant’s situation. In the submission from Ms Brophy, it detailed that once the applicant’s spouse received notification that the Tribunal had remitted his student visa application, the applicant became aware that the applicant had not been included/had her own review with the Tribunal.

42. The submission, which attached corroborative correspondence to the Tribunal, detailed that:

43. On 11 November 2019 a submission was made to the Tribunal for the applicant to be ‘retrospectively included in the review application. Properly, Tribunal staff advised that there was no power to do so.

44. On 5 February 2020 a submission was made to the Tribunal for the applicant to apply out of time for a review of the decision to refuse to grant her a student visa. Properly, Tribunal staff advised there was no power to do so.

45. The submission also noted that the applicant could not be included in her spouse’s most recent substantive visa application because she was subject to s 48 of the Act, which prevented her from doing so.

46. The Tribunal has also considered the fact that the applicant, as a person who made a student visa application on the basis that she was a dependent on her spouse’s student visa, has been refused a student visa in circumstances where the spouse was eventually granted the student visa. That is to say, if a delegate had made no decision concerning the applicant’s student visa and had waited for the review of the spouse’s student visa to be completed, the applicant would have been granted the student visa when her husband was granted the student visa.

47. This observation should not be considered as a criticism of the delegate proceeding to refuse to grant the student visa. It was the proper thing to do when the applicant’s husband had his student visa refused. The Tribunal mentions this only to highlight that the applicant would have had her student visa granted in those circumstances.

    Past and present behaviour of the applicant towards the department

48. There is no evidence to suggest that the applicant has demonstrated poor behaviour towards the department.

49. Whether there would be any consequential cancellations under s 140 of the Act

50. There is no evidence that any person holds a visa by virtue of the applicant holding the Bridging B visa. Therefore, no person will have their visa cancelled in the event that the applicant has her Bridging B visa cancelled.

    Mandatory consequences of the cancellation of the Bridging B visa

51. The Tribunal accepts that as a result of the decision to cancel the applicant’s Bridging B visa, she would be subject to s 48 of the Act which would prevent her from applying for certain visas to remain in Australia. However, the Tribunal notes that the applicant is already subject to s 48 of the Act due to the fact that she has a student visa refused. The student visa refusal would act to prevent the applicant from being included in her spouse’s most recent substantive visa application, irrespective of the cancellation decision.

52. The Tribunal also accepts that if the Tribunal were to affirm the decision to cancel the applicant’s Bridging B visa, then the Bridging E visa that she presently holds associated with the current review application will cease within 35 working days. This will mean that the applicant will become an unlawful non-citizen in Australia and liable for detention under s 189 of the Act as an unlawful non-citizen and faces the risk of being placed into immigration detention in the event that she does not make an valid application for a type of visa that can be granted to her, seek Ministerial Intervention and be granted a bridging visa to regularise her status in Australia pending a decision, or apply for a bridging visa to depart Australia.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration would be breached

53. At the Tribunal hearing, the applicant was asked whether there were any reasons why she could not return to India and apply for a new visa to return to Australia. She noted that she had registered for IVF and said that she has more confident in the Australian health system to assist her, in contrast to the Sri Lankan health system. She also noted that she has asthma and the present COVID situation. The applicant provided documents in support of her asthma and her involvement with the IVF programme.

54. The applicant did not identify any matter which would suggest that Australia would breach its non-refoulement obligations as a result of the Tribunal affirming the decision to cancel the applicant’s Bridging B visa. The Tribunal is satisfied that there is nothing to suggest Australia would do so as a result of a Tribunal decision to uphold the decision to cancel the visa.

55. The Tribunal accepts that the applicant may be separated from her husband as a result of the decision to cancel the Bridging B visa if he desired to remain in Australia while the applicant returned to Sri Lanka. The applicant also told the Tribunal hearing that she has a brother presently in Australia who holds some sort of business visa through employer sponsorship. The Tribunal accepts that the applicant would also be separated from her brother.

    Any other relevant matters

56. The Tribunal has taken into account the fact that the applicant was granted a Bridging B visa that she should not have been granted as she did not meet the criteria for the grant of the visa.

57. The Tribunal has also taken into account what would happen to the Bridging B visa in the event that the Tribunal decided not to cancel the visa.

58. As the Bridging B visa was granted on an indefinite basis until the applicant’s student visa application was finally determined, a decision not to uphold the cancellation of that visa would have the potential consequence of allowing the applicant to remain indefinitely in Australia because there would be no end date to the visa. This would undermine the very purpose of a grant of a bridging visa, which is designed to regularise a person’s migration status temporarily for the purpose of a substantive visa decision.

    CONCLUSION

59. The Tribunal has sympathy for the applicant. It appears that a small error on behalf of a migration agent (which the Tribunal again reminds readers was neither Ms Brophy nor Ms Magill) has led to the applicant being placed in a very uncertain position.

60. The Tribunal accepts that the applicant has not been dishonest in apply for the visa.

61. The Tribunal accepts that there is no evidence that the applicant has not complied with visitor visas, that she desires to remain with her husband in Australia, that the ability of the applicant to engage in the IVF process in Australia may end in the event that she is required to return to Sri Lanka, that she may be separated from her husband until such time as she can apply for a visa to return to Australia, and that her spouse, who is in Australia lawfully in connection with an outstanding substantive visa application, will be separated from the applicant in the event she returns to Sri Lanka. The Tribunal accepts that the applicant could be placed into immigration detention pending removal from Australia.

62. However, despite the above potential consequences, the Tribunal feels that it cannot do anything other than uphold the decision of the delegate in circumstances when the applicant has been granted a visa that she should not have been granted, and the failure to uphold the cancellation of that visa will result in the bridging visa acting as a visa for the applicant to remain in Australia indefinitely, which is not the purpose of a bridging visa.

63. Considering the circumstances as a whole, the Tribunal concludes that the Bridging V visa should be cancelled.

    decision

64. The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.

    REQUEST FOR THE TRIBUNAL TO ‘REFER THE MATTER TO THE MINISTER’ FOR THE EXERCISE OF POWERS UNDER S 351 OF THE ACT

1. Section 351 of the Act provides that if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

2. The Minister does not have a duty to consider whether to exercise the power under subsection in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances

3. There is nothing to suggest, and the Tribunal is not aware, of any policy that directs that a ‘referral’ (if that is the appropriate term) made by the Tribunal is treated any more favourably by the Minister than a request made directly by an applicant for the Minister to exercise powers under s 351 of the Act.

4. In the Tribunal’s view, it is not appropriate for the Tribunal to participate in this process of raising a matter with the Minister to consider exercising powers under s 351 of the Act.

5. The Tribunal’s task is not to be an advocate for either the delegate or the applicant. The Tribunal’s task is only to determine whether the applicant meets particular visa criteria that is under review. A request for the Minister to exercise powers under s 351 of the Act should come directly from the applicant.

   Nathan Goetz
   Member