Panayiotou (Migration)

Panayiotou (Migration) [2021] AATA 2534 (15 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Panos Panayiotou
CASE NUMBER:  2108462
Home Affairs REFERENCE(S):               BCC2021/1304107
MEMBER:C. Packer
DATE:15 July 2021
PLACE OF DECISION:  Melbourne
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.050.211 of Schedule 2 to the Regulations; and
·cl.050.212 of Schedule 2 to the Regulations; and
·cl.050.221 of Schedule 2 to the Regulations; and
·cl.050.223 of Schedule 2 to the Regulations
The Tribunal also directs the primary decision maker
·to indicate to the applicant that conditions 8101, 8207, 8401, 8506 and 8564 will be imposed if the visa is granted.

Statement made on 15 July 2021 at 12:45pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – visa, study and work history – Federal Circuit Court appeal in relation to substantive visa refusal in progress – disengagement with department, interactions with police, periods as unlawful non-citizen, failure to depart on previous bridging visa and immigration detention – mental health and erratic behaviour – contrition and assurance of abiding by conditions – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 73, 269, 375A, 376
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.221, 050.223, 050.612A, Schedule 8, conditions 8101, 8207, 8401, 8506, 8564
CASE
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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.
The applicant applied for the visa on 25 June 2021. 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 050.211, 050.221 and 050.223.
The decision to refuse to grant the visa was made on 29 June 2021 on the basis that the delegate was not satisfied that the visa applicant will comply with the conditions imposed on the visa if the visa is granted.
The applicant appeared by video before the Tribunal on 7 July 2021 to give evidence and present arguments. He is not represented. The Tribunal also received oral evidence by phone from Mr Arthur Thorne, the applicant’s landlord in Adelaide.
At hearing the applicant requested further time to provide information in order to address the Tribunal’s comments, and he requested an adjournment because a change in his detention accommodation had upset him. In light of his permission, the Tribunal agreed to extend the statutory period by an additional seven days, and to adjourn the hearing. The hearing resumed on 13 July 2021.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Evidence
On 5 July 2021 the Tribunal sent the applicant a natural justice letter. The Tribunal letter listed the applicant’s migration history, as summarised in the delegate’s decision, and highlighted some of the migration history particularly relevant to the Tribunal’s considerations:
On 19 October 2015 you first arrived in Australia as the holder of a Work and Holiday subclass US462 visa. This visa ceased on 19 October 2016.
On 6 October 2016, you lodged a Student - Post Graduate Research subclass TU 500 visa. This application was deemed Invalid on 6 October 2016 due to you incorrectly claiming that you were funded by the Commonwealth Government of Australia.
On 6 August 2016, you departed Australia.
On 6 October 2016, you lodged an Offshore Tourist Stream subclass FA600 visa.
On 12 October 2016, you returned to Australia.
According to Departmental records, on 17 October 2016, you contacted the Department. It was explained to you that as your Offshore Tourist Stream subclass FA600 visa was lodged offshore, it was a condition of grant that your physical location be offshore on the date of the decision and that a Bridging Visa A would not be granted to you as you were onshore at the time of decision. It was further confirmed with you that your current Work and Holiday subclass US462 visa would expire on 19 October 2016.
On 17 October 2016, you lodged a further Student - Post Graduate Research subclass TU500 visa application.
According to Departmental records, on 17 October 2016, on the same day you lodged your TU 500 visa application, you contacted the Department to make enquires about when you would be granted a Bridging Visa A. You were advised that the Bridging Visa A would commence once the Work and Holiday subclass US462 visa ceased.
On 18 October 2016, you were granted a Bridging Visa A. The following condition was imposed on the visa: 8547 WORK LIMITATION.
On 26 October 2016, you were granted a Student - Post Graduate Research subclass TU500 visa.
On 22 February 2017, the Offshore Tourist Stream subclass FA600 visa was refused as the Delegate was not satisfied you met clause 600.412. Additionally there was no further contact from you nor could the Delegate make contact with you. The Delegate however had noted that you had arrived onshore on 12 October 2016 as the holder of a Work and Holiday subclass US462 visa.
On 1 November 2018, according to Departmental records, you contacted the Department and advised the following, that:
·you were holding a Student visa,
·your university would be reporting you to Home Affairs for non-academic reasons,
·you wished to have this on record,
·you were employed by University of Adelaide,
·you had lost access to your lab,
·you were notified by IT that you were no longer an employee of the University but a student,
·you were revoked for study and you scholarship was also revoked.
Departmental records also indicate that you contacted the Department on 7 February 2019, making enquiries as to whether there was any new correspondence sent regarding the Student visa application. You were advised that no correspondence was sent regarding the visa.
On 25 February 2019, you advised the Department the following:
·that you were currently legally fighting University of Adelaide on an issue,
·that various groups had informed you they need to contact the Department, because your visa may be cancelled,
·that you were advised that your visa would be cancelled in situations where the visa conditions were breached.
On 1 March 2019, you advised the Department of the following:
·that you were enquiring about an email you sent to the student visa program with attachments,
·that you were advised to wait for a response,
·that you wished to speak with a supervisor as the University of Adelaide had prematurely cancelled your COE (Confirmation of Enrolment),
·that you were advised by the University of Adelaide of a trespassing ban and fine for speaking with staff.
The Departmental officer referred you to the Global Feedback Unit for you to provide your feedback via the correct Departmental channels.
On 8 April 2019, departmental records indicate that you requested an extension of your Student visa as you claimed to have issues with your University which led to your dismissal.
On 5 April 2019, you were advised by a Departmental officer that you would be required to lodge a new visa application as the Department was unable to extend your Student visa.
On 23 May 2019, the Department was notified that your candidature was terminated by the University of Adelaide in July 2018 after an extensive appeal process.
On 20 September 2019, departmental records indicate that you contacted the Department and advised:
·that you were trying to contact Status Resolution,
·you requested information on how to apply for review,
·you were advised your visa was valid until 26 October 2019.
·you were referred to the Home Affairs website.
On 25 September 2019, you sent an email to the University of Adelaide’s legal section. You also copied the Department into that email. You stated the following in the email:
Dear University of Adelaide Legal,
My student VISA with the University of Adelaide provider is still activate as well as the associated health Care cover.
I do not feel well and would like to request urgent assistance with counselling services.
Can you please provide me with an update on my ability to attend campus and provide me with information on how to access counselling services?
I greatly Look forward to your response,
Panos
On 12 October 2019, the Department sent you a reminder on the upcoming cessation of your visa:
This is an automated message from the Department of Home Affairs.
Panos,
Your Australian visa granted on 26 October 2016 will cease soon. Make sure you have departed Australia or hold
another visa by 26 October 2019
To check the conditions and cease date of your visa, go to not reply.
On 23 October 2019, you lodged a Temporary Activity Entertainment subclass GG408 visa.
On 25 October 2019, you were granted a Bridging Visa A.
On 26 October 2019, your Student - Post Graduate Research subclass TU500 visa ceased.
On 13 November 2019, Temporary Activity Entertainment subclass GG408 visa was refused as the Delegate was not satisfied that you met clause 408.213 in Schedule 2 of the Migration Regulations. This clause provides that:
408.213
The applicant genuinely intends to stay in Australia temporarily to carry out the activity for which the visa is granted, having regard to:
(a) whether the applicant has complied substantially with the conditions of any last substantive visa held or any subsequent bridging visa;
(b) whether the applicant intends to comply with conditions to which the visa would be subject; and
(c) any other relevant matter.
On 4 December 2019, you lodged an appeal with the Administrative Appeals Tribunal.
On 2 March 2020, South Australia Police advised the Department that you had been advised during a roadside check to report to the Department to resolve your immigration status as you were an unlawful non-citizen.
On 3 March 2020, the review decision was No Jurisdiction for the refusal of the GG408 visa. On the same date, the No Jurisdiction decision was reversed and the review was commenced.
On 3 March 2020, the Status Resolution Manager in South Australia advised you by phone that you were holding a Bridging Visa A and it was not necessary for you to attend the office at that time.
On 9 April 2020, the Tribunal Member (differently constituted) affirmed the Department’s decision to refuse your Temporary Activity Entertainment GG408 visa application.
On 14 May 2020, you were an unlawful non-citizen. submissions
Case Number: 2108462
On 19 May 2020, you were advised by email at [his email address] that your Bridging Visa A had expired on 15 May 2020 and you no longer held a valid visa. The letter explained how to lodge a Bridging Visa E.
On 19 November 2020, the Department was advised by South Australia Police that you were stopped during a roadside check. You were cautioned by South Australia Police regarding your unlawful status and advised to depart Australia or resolve your visa status. You were advised that the next interaction with Police or the Australian Border Force may result in detention.
On 19 November 2020 you were stopped randomly during a police roadside check. In your possession was a knife. SA Police contacted the Department (ISS – Immigration Status Service) to obtain information about your visa status. ISS advised SA Police you were currently unlawful. SA Police further relayed information provided by the Department that to either depart Australia or
regularise your immigration status and any further interactions with Police or the Australian Border Force may result in detention.
On 27 November 2020, you were again stopped by SA Police during a routine traffic stop. SA Police established that you were driving unlicensed and you received an infringement. Again the SA Police contacted ISS who advised that you were an unlawful non-citizen. You were subsequently detained by SA Police under s189 and conveyed to the Adelaide City Watch House for a Located Person’s Interview with Immigration Status Service (Australian Border Force).
On 27 November 2020, you were granted a Bridging Visa E as you satisfied the criteria for the grant of the visa because you were making acceptable arrangements to depart Australia. You were verbally advised that the Bridging Visa E is granted for two weeks only and had the following conditions imposed:
8101 NO WORK
8401 REPORT AS DIRECTED
8506 – Must notify Immigration at least 2 working days in advance of any change in the
holder's address.
8510 SHOW VALID PASSPORT
8207 NO STUDY
You were also advised during this interview that because your last visa was refused, you would not satisfy the first criteria. You were advised that you would have to depart Australia and apply for another visa to return. You were advised to start thinking about departing Australia and that if you
refused to do so you could be detained and placed into immigration detention. You were advised that the Bridging visa would be granted on the basis that you will engage with the Department and start the process of departing Australia and that if you committed any criminal offences, you would not be granted another visa but detained. It was also brought to your attention that you had been emailing several areas of the Department including other organisations and to cease this behaviour. In response to this, you stated to the Border Force officer that “I would like to continue to contact you because you know my story now”.
You were advised to contact the Status Resolution Section in Adelaide to liaise with them in relation to your visa status and more importantly prior to your Bridging Visa E cessation.
On 12 December 2020, you were an unlawful non-citizen.
On 20 April 2021, you were arrested by SA Police during a roadside check. SA Police were advised you were unlawful and therefore you were detained under s189 and transferred to the Adelaide Immigration Transit Accommodation. on 02/07/2021 12:13:42
On 21 April 2021, you lodged a Bridging Visa E. In the application you indicated the following:
Select the reason for applying for a Bridging visa E that is most appropriate to the applicant's circumstances (select all that apply)
Application for a substantive visa
Ministerial intervention
Judicial review
Merits review at the Administrative Appeals Tribunal, or
revocation of a visa cancellation
“I have been in Australia for 6 years. I have requested a bridge
visa through this channel because it seems like it is the only
option to be removed from detaining. This is the third occurrence
or wrongly detaining. There have been apology letters from
DHA regarding previous detainings. It seems fair to grant a e
visa while legal, immigration, and citizenship matters are being
rectified”[sic].
On 22 April 2021, SA Police advised the Department that your license had been suspended due to five (5) unpaid fines totalling $2804 which also incurred 15 demerit points.
On 23 April 2021, the Bridging Visa E was refused as the Delegate was not satisfied that you would abide by the following conditions imposed on the Bridging Visa E as follows:
8401 – Report as directed
8511 - Provide ticket to depart Australia
8512 - Depart Australia
Subsequently from 23 April 2021 until 18 May 2021, you made eight (8) Bridging Visa E applications. All of these applications were deemed Invalid under s(74(2)) - Less than 30 days after last Refusal.
On 26 April 2021, you requested the Minister to intervene in your case. On 28 April 2021 you case was assessed as not meeting the Guidelines for Ministerial Intervention.
On 24 May 2021, you were formally advised that your case was Not Referred to the Minister.
On 7 May 2021, you lodged Judicial Review with the Federal Court in relation to your refused Temporary Active Entertainment GG408 visa application
On 23 May 2021, you lodged a Bridging Visa E. In the application you indicated the following:
Select the reason for applying for a Bridging visa E that is most appropriate to the applicant's circumstances (select all that apply)
Ministerial intervention
Judicial review
On 26 May 2021, the Bridging Visa E was refused as the Delegate was not satisfied you would abide by the following conditions imposed on the Bridging Visa E as follows:
8401 – Must report as directed
8564 – Must not engage in criminal conduct
On 8 June 2021, you lodged an appeal with the Administrative Appeals Tribunal.
On 15 June 2021, the appeal was deemed as being Timeframes not met - Review No Jurisdiction.
On 24 June 2021, you lodged a Bridging Visa E. On 24 June 2021, the Bridging Visa E was deemed Invalid under s(74(2)) - Less than 30 days after last Refusal.
On 25 June 2021, you lodged a Bridging Visa E, which is the decision before me. In the application you indicated the following:
Select the reason for applying for a Bridging visa E that is most appropriate to the applicant's
circumstances (select all that apply)
Ministerial intervention
Judicial review
Merits review at the Administrative Appeals Tribunal, or
revocation of a visa cancellation
You provided the following information with the application titled as follows: …
The Tribunal will consider your migration history
The Tribunal will consider all of the material and information before it. The member notes that the foregoing immigration history shows in part that you have not complied with Australian migration law and have breached State laws:
- From 15 May 2020 until 27 November 2020 you were an unlawful non-citizen.
- On 27 November 2020 you were again stopped by SA Police during a routine traffic stop and SA Police established that you were driving unlicensed and you received an infringement.
- On 27 November 2020 you were granted a Bridging E visa as you satisfied the criteria for the grant of the visa because you were considered to be making acceptable arrangements to depart Australia. However, you did not depart Australia.
- On 12 December 2020 you again became an unlawful non-citizen.
- On 20 April 2021 you were arrested by SA Police during a roadside check.
- On 22 April 2021 SA Police advised the Department that your license had been suspended due to five unpaid fines totalling $2804.
The Tribunal will discuss this information at the scheduled hearing.
The Tribunal will have regard to the delegate’s considerations
The member will have regard to the delegate’s considerations in the delegate’s written decision of 29 June 2021. The member notes that some of the delegate’s considerations may be relevant to the Tribunal’s consideration of whether you would abide by visa conditions if a visa was granted to you.
The decision shows you were interviewed on 28 June 2021 although the interview was truncated. The member also notes in part:
·    At your interview, the discussion about your mental health and your access to a psychologist. “You also stated that you came to South Australia Police attention because of your erratic behaviour and picking up rubbish and that the last time they pulled you over, was because your licence was suspended.” (page 12) An applicant’s medical and mental health problems, if any, would be a relevant consideration in a Bridging E visa application.
·    You recorded the interview without permission “even when you were explicitly advised at the start of the interview that I did not provide you with my consent to record the interview” (page 10).
·    “During a previous interview with a Delegate on 25 May 2021, you indicated that you had been approached by South Australia Police up to eighteen times in the past year adding that most of these times related to your visa status.”
·    “During the Located Person’s Interview with ISS you stated that you are an Australian citizen and that you had received letters from the Department advising you were a citizen. A document presented to the ISS officer stated that “we find the criteria for the grant of a Bridge of Peace Citizenship is met by the applicant, therefore, we grant the application by the applicant for Australian citizenship”. The ISS officer advised you that there was no such thing as a Bridge of Peace Citizenship and that citizenship is only acquired if you attend a citizenship ceremony.” The member notes that you have provided a fraudulent document to the Department.
The Tribunal notes there is a dob-in concerning you
The Tribunal notes there is a dob-in concerning you. The delegate stated in the delegate’s decision that “Information also provided by the community supports that you were well aware you no longer held a visa as your visa had expired. The information also outlined that you were avoiding authorities. I give some weight to this community information given you were unlawful at the time this information was relayed to the Department.” (page 13)
The dob-in was from an anonymous source and not significant and so the member may give no weight to the information.

The applicant has provided a large volume of documents and information to the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
At the time of decision, cl.050.221 requires that the applicant must continue to meet cl.050.211 and one of the subclauses of cl.050.212.
At the time of application the applicant met cl.050.211 as he was an unlawful non-citizen, and he was not an eligible non-citizen of the kind set out in regulation 2.20(7), (8), (9), (10), (11) or (17). He continues to meet the conditions in cl.050.211.
The Tribunal next considered whether the applicant meets one of the subclauses of cl.050.212.
Subclause 050.212(3A) states that:
(3A) 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) either:
(i) the applicant has applied for judicial review of a decision to refuse to grant
the visa and the judicial proceedings (including any proceedings on appeal)
have not been completed; or
(ii) the Minister has applied for judicial review of a decision in relation to a
refusal to grant the applicant’s substantive visa, and the judicial review
proceedings (including any proceedings on appeal) have not been completed.
The applicant provided copies of documents he had filed in the Federal Circuit Court of Australia. In his FCCA application he stated in part: “I am applying to this Court to review my immigration matters, as a jurisdictional error has occurred with my most recent Bridging Visa E application.” He also indicated the migration decision concerned the migration decision made by the AAT on 9 April 2020. The litigation matter therefore concerns Tribunal case 1934379 that affirmed the decision not to grant the applicant a Temporary Activity (Class GG) visa. A FCCA document shows the matter is ADG123/2021 dated 10 May 2021.
The Tribunal finds that the applicant satisfied cl.050.212(3A)(a) and (b)(i). Those judicial review proceedings have not been completed.
In sum, the Tribunal finds the applicant meets cl.050.221 as he continues to meet cl.050.211 and one of the subclauses of cl.050.212.
Whether the applicant will abide by conditions – cl.050.223
Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on it. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject.
When considering cl 050.223, the Tribunal must consider which conditions, if any, should be imposed and whether it is satisfied that the applicant would abide by those conditions. In deciding the question of whether the applicant would abide by conditions imposed, the Tribunal is to consider the likely conduct of the applicant. In that context, relevant considerations may include the applicant’s past immigration history, in particular any previous breaches of immigration laws, the significance of the migration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach and whether the applicant had shown any contrition for their unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].
If the Tribunal is satisfied that the applicant will abide by the conditions if security of a particular amount is required, the applicant meets cl.050.223. However, if not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl.050.223 is not met. In this case the Tribunal discussed the issue of a security with the applicant at hearing, but has decided not to request a security.
In this case, cl.050.612A applies and so condition 8101 must be imposed. This clause prescribes that, in addition to any mandatory condition, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:
8101    The holder must not engage in work in Australia.
8207    The holder must not engage in any studies or training in Australia.
8401 - The holder must report
(a)at the time or times; and
(b)at a place or in a manner;
specified by the Minister from time to time.
8506 – The holder must notify immigration at least 2 working days in advance of any change     in the holder’s address. [note: Immigration means the Department administered by the Minister administering the Migration Act 1958.]
8564 – The holder must not engage in criminal conduct.
At hearing the applicant stated the Department held his US passport.
First, at hearing the applicant stated that if granted this visa he would not seek to work or study in Australia. He stated that he was financially able to support himself in the community for a lengthy period and he provided a copy of a financial record from D A Davidson that showed he had access to an account with a balance of $US18,889 on 30 June 2021. In sum, the Tribunal is satisfied the applicant would abide by conditions 8101 and 8207.
Second, at hearing the applicant stated that if released he would purchase a flight to Adelaide and return to live at the accommodation at Henley Beach. He provided an email from his landlord Mr Arthur Thorne on 22 May 2021 that stated in part: the applicant had been a tenant in an apartment connected to the home since 2018; they would offer support to him when he was released from detention. At hearing on 7 July 2021 the Tribunal phoned Mr Thorne who stated that: the applicant had paid weekly rent of $400 and the payments were made every fortnight or month; when detained he had been three weeks rent in advance; if he was released he would be able to return to the same room and indeed his possessions remained there; he had been a great tenant and had been respectable. The delegate’s decision indicated that Departmental systems showed the applicant had updated his residential address previously and the Henley Beach address was noted. At hearing the applicant agreed if he moved from that address, or if the accommodation was not available when he returned to Adelaide, that he would immediately notify the Department of the change of address. In sum, the Tribunal is satisfied the applicant would abide by condition 8506.
Would he abide by conditions 8401 and 8564?
Third, at hearing the Tribunal discussed the applicant’s breaches of Australian law. The Tribunal’s letter of 5 July 2021 noted his immigration history shows in part that he had not complied with Australian migration law and had breached State laws:
·From 15 May 2020 until 27 November 2020 you were an unlawful non-citizen.
·On 27 November 2020 you were again stopped by SA Police during a routine traffic stop and SA Police established that you were driving unlicensed and you received an infringement.
·On 27 November 2020 you were granted a Bridging E visa as you satisfied the criteria for the grant of the visa because you were considered to be making acceptable arrangements to depart Australia. However, you did not depart Australia.
·On 12 December 2020 you again became an unlawful non-citizen.
·On 20 April 2021 you were arrested by SA Police during a roadside check.
·On 22 April 2021 SA Police advised the Department that your license had been suspended due to five unpaid fines totalling $2804.
Breaches of State law
The applicant submitted that he had not been arrested or detained by SA police for any breaches of SA law. Information before the Tribunal shows the applicant had been under a Fines Suspension on his SA driver licence due to five unpaid fines that would accrue demerit points. The applicant stated he had made arrangements to pay his fines and he provided an email of 24/5/2021 from [email protected] about agreement for a $100 monthly direct debit on a balance of $2981: the next payment is due 18 August 2021. He stated he now had a valid driver licence and his motorcycle had been recovered. The Tribunal observed that it would be in his best interests that, if released from detention, he had no further adverse interactions with the SA police. He appeared to understand this.
Did he hide in the community?
At hearing he stated, and the Tribunal acknowledges, that he had never gone underground to hide in the community.
His disengagement with appropriate areas of Department after 14 May 2020
The Tribunal discussed his disengagement with the appropriate areas of the Department and his inaction in seeking a Bridging visa when his Bridging A visa ceased on 14 May 2020. The Tribunal pointed out that an officer from SA Status Resolution had by email advised him what he had to do as he no longer held a valid visa, and then the officer on two further occasions, and later a manager, advised availability to discuss the applicant’s visa situation, but the applicant had not gone on to do this. The main point of the applicant’s explanation, both at hearing and in submissions, is that he did not trust the Department and he had sent email queries to them that had not been answered. He also claimed he had gone to the Department’s building but it was closed. The Tribunal pointed out that from May to November 2020 (when he was stopped by SA police) was a lengthy time in which he took no action to fix his visa status. He responded that he had made constant queries seeking clarity.
The Tribunal does not accept the applicant’s explanations. The correspondence that he provided to the Tribunal shows that: the appropriate area of the Department made every effort to contact and assist the applicant, including answering his email requests for more information; but he nonetheless then failed to take the appropriate action to fix his visa status.
At the resumed hearing he stated that he now recognised his failure to do as he had been requested had been a mistake, and he assured the Tribunal that if released he would certainly comply with the Department’s directions as required by visa conditions.
Bridging E visa granted on departure grounds
At hearing the Tribunal discussed the Bridging E visa he had been granted on 27 November 2020 on the basis he was making acceptable arrangements to depart. The decision reasoning for this visa was that the applicant would voluntarily engage in facilitating his own departure arrangements. At the time the applicant was advised of all of this and when asked if he understood he had replied ‘yes’.
At hearing the applicant responded that he had never made any arrangements to depart and at the interview he had not claimed to be doing so. In light of the applicant’s actions and activities at the time that show he had had no intention of departing Australia, the Tribunal accepts that the applicant had not actively misrepresented to an officer that he had been making or would make actual arrangements to depart.
His disengagement with appropriate areas of Department after 11 December 2020
At hearing the Tribunal discussed his inaction in seeking a Bridging visa when his Bridging E visa ceased on 11 December 2020. He discussed his many queries that had gone unanswered. He provided documents that showed he had made requests and queries to a number of sources about a number of issues. A sample of those queries follows. He emailed officer RS and SA police regarding his arrest on 27/11/2020:
Dear [RS], SAPOL staff attending my detaining, and other colleagues;
On 27-NOV-2020 it seems that I was unlawfully detained again by SAPOL for matters that have been evidently confirmed to be non-SAPOL related.
During the detaining process I was I required to have a phone interview with a Immigration Officer. I requested that SAPOL would attend this interview. The first answer I received was no but after further pressing the interview was had and recorded by three SAPOL officers, myself and Robert Strachan of Immigration.
During the phone interview it appeared that there were major gaps in the informations obtained from myself, immigration, and SAPOL.
Requests:
1) Given the circumstances discussed in our phone interview, I feel that it is very fair to request that [RS] provide the letters he has referred to in the phone interview (of which I do not have and which do not match my records of documents from Immigration), be sent to Myself and SAPOL via email. I feel like this would be a good step toward transparency and fair process.
2) I would also like to request a copy of the entire audio recording from myself and [RS].
Best regards,
An officer in SA police advised him by email on 9 December 2020:
Hi Mr PANAYIOTOU,
If you have any enquiries in relation to your status, you will need to engage a solicitor or migration agent to act on your behalf. I don't have any answers for you and cannot assist or provide you with any further information. My understanding is you were provided with contact numbers in which to engage the relevant agencies.
Please refrain from including me in any further correspondence. Thanks
His Bridging E visa ceased on 12 December 2020. However, he continued with his email enquiries to the SA police officer, RS and many other addressees, for example on 23 December 2020:
[Subject: Re: 27-NOV-2020_Panayiotou_unlawfully detained-no response from DHA as promised]
Greetings, It appears that you are unwilling to inform me on how I would go about receiving the information that was collected during your investigation.
I feel there should be FOI channels that would allow me to request the information that was taken from the phone interview.
How can you say I was provided contact numbers when the information I received was that I would be contacted in 2 business days from [R].
There was no rational provided from [R] regarding the information I have received from DHA that he alleged to be fraudulent. He did not even provide his contact information in the interview.
He listed himself at a Boarder force employee however the only confirmed active account he had was AFP. How am I supposed to know who to contact if this is true?
I feel the minimum you could provide is a Channel in which I could request the contents of the phone interview. How will This request be addressed?
Then on 24 December 2020 he ostensibly commenced email correspondence with another SA police officer [CK]:
I feel like the SAPOL systems are not accurately representing my situations in Australia.
How would you recommend I try to rectify the issues that seems to be causing my regular interactions with SAPOL? I’ve been trying my best to get responses. Perhaps a standby bridge of peace will need to occur at the home affairs office to try and rectify the information that I last received from DHA before being recently detained
That officer replied by email on 29 December 2020:
Hello Panos,
On further review of our records it appears that your bridging visa expired on the 11/12/20. I suggest that you present yourself forthwith to the Department of Immigration. Regards,
Despite the officer’s advice, the applicant continued his queries: his email on 2 January 2021 stated:
[C], Your response does not seem consistent with with previous correspondences of SAPOl or DHA.
It also appears that my request for FOI and possibilities of a standby bridge of peace have been ignored. Would it be a bad idea to present my details to your supervisor so that I can begin correspondence there. Best regards, Panos
Sample circumstances:
-presented you documents that grant citizenship
- treated as permanent resident via ATO
- On my last encounter where I was detained I was required to have phone interview with a department of Immigration staff who has not contacted me as promised (requested SAPOL supply FOI from this interview). This staff member was only confirmed to be a AFP officer and not DHA.
-pending legal matters with DHA, FWC, DIP. ATO
At hearing the Tribunal’s concerns with the applicant’s behaviour were discussed:
·He had failed to follow the Department’s written advice/directions in May 2020 as to the actions he needed to take, and he failed to contact the officer by phone when the offer was made.
·He had failed to follow the Department’s advice/directions at the time he was detained in November 2020.
·He had undertaken queries about his migration and visa status with many people including SA police who had been unable to assist him in actual visa matters, rather than going through the appropriate channels in the Department.
The applicant appeared to accept that he had made mistakes in not complying with Departmental officers’ past directions/advice, and he indicated that if released he would from now on comply with every direction in a lawful manner.
His mental health
The applicant’s email chains, multiple queries and accusations, and multiple legal and administrative actions in a number of agencies, together with his sending of emails to a large number (in some emails comprising several pages) of unrelated addressees- ostensibly raise concerns with his mental health. At hearing the Tribunal noted that his emails to, at times, pages of addressees had not been beneficial for him.
At hearing the Tribunal discussed with him a medical opinion on 13 May 2021 that gave a diagnosis of schizophrenia; and that he refused to acknowledge his mental health or take prescribed medication. The opinion was subject to the s.376 certificate, and the Tribunal exercised its discretion to disclose it to the applicant for natural justice reasons. The applicant responded that he did not have any mental health problems and he took issue with the diagnosis and opinion. At the resumed hearing the Tribunal noted that while in detention he had previously sought a medical referral and he is ostensibly under considerable stress and that if released it would be in his best interests to seek counselling.
Another of the Tribunal’s concerns relates to false documents. A decision on 23 April 2021 to refuse him a Bridging E visa discusses the applicant’s claim to have outstanding Ministerial intervention requests and he provided reference numbers which were not in the Department’s Ministerial Correspondence system. The Tribunal has not sighted these documents/requests.
Also, he has provided a document purporting to be from the Department (Immigration and Citizenship Services Group) dated 13 March 2020. The document appears to be on paper with a patterned background and ostensibly written in a formal manner. The document stated in part:
We are convinced that the applicant satisfies the provisions of the Migration Regulations 1994. We have also considered that the applicant has provided evidence of significant contribution to Australian culture.
We find the criteria for the grant of Bridge of Peace Citizenship is met by the applicant. Therefore, we grant the application by the applicant for Australian Citizenship.
The applicant referred to the Bridge of Peace Citizenship in subsequent correspondence that included, for example, an email dated 1 June 2020 in which he stated in part:
It seems like the last time I provided DHA with an update was regarding the incident that occurred 2-mar-2020. Since that time it appears that a DHA Officer was granting me a Bridge of Peace citizenship Status. In result of this information I have: 1) requested that the Australia Federal Police notarise the citizenship (if the officer was legitimate). 2) Reported the correspondence with DHA to Apparently relevant authorities (Which it seems I have received no response to)
At his Located Person Interview on 27 November 2020 the applicant claimed he was an Australian citizen because he had got letters from the Department saying he was a citizen. The applicant was advised that firstly, there is no such thing as Bridge of Peace Citizenship and secondly, citizenship is only acquired if you attend a citizenship ceremony, and so this document appears to be fraudulent. At hearing when the Tribunal queried why he had not undertaken any action to regularise his visa status after the Bridging E visa ceased on 12 December 2020 he responded that he had made queries as to what to do and got no answers, and in his mind he was a permanent resident on the way to citizenship.

The Tribunal advised him that the document was false and fraudulent and there were only two explanations for the document: he had manufactured the document; or an unidentified person had sent it to him as a malicious joke. The Tribunal pointed out it did not accept that a Departmental officer had manufactured a false document and mailed it to him. The applicant denies that he manufactured the citizenship document or any document. At hearing the Tribunal noted that the manufacture and/or any reliance on false documents could be a criminal offence, and he appeared to acknowledge this.The Tribunal notes the applicant has not been charged with a criminal offence in relation to false documents.
Conclusion: abide by conditions 8401 and 8564
The applicant’s past behaviour in the community and in his, at times, disengagement with appropriate areas of the Department concerning his visa status, raise concerns that he may not abide by these visa conditions if released. The applicant’s erratic and unusual behaviour that includes his email barrages, together with his mental health concerns, raise concerns that he may not abide by these visa conditions if released.
Nonetheless, at hearing the applicant appeared contrite about his past conduct in disengagement and disputing Departmental officers’ directions/advice. He appeared to accept that irrespective of his other legal and administrative matters that may be ongoing, he would follow an officer’s directions pursuant to condition 8401. He appeared eager to assure the Tribunal that if released he would make every effort to scrupulously follow Departmental directions concerning condition 8401:
8401 - The holder must report
(a)at the time or times; and
(b) at a place or in a manner;
specified by the Minister from time to time.
At hearing the applicant appeared to acknowledge that: he did not have Australian residency or citizenship; he should not claim that he did; he should not seek to rely on the false citizenship document. At hearing the applicant appeared to acknowledge he should change his behaviour in the community so that he does not come to the adverse attention of SA police. The Tribunal has given him the benefit of the doubt and accepts his assurances that he would report: (a) at the time or times; and (b) at a place or in a manner; specified by the Minister (ie the relevant delegated Departmental officer) from time to time. The Tribunal accepts his assurances that he would not engage in criminal conduct.
In sum, having considered all of the circumstances of the applicant and circumstances in SA, and all of the evidence cumulatively, the Tribunal is satisfied that the applicant will abide by conditions imposed on the visa if granted:
8101    The holder must not engage in work in Australia.
8207    The holder must not engage in any studies or training in Australia.
8401 - The holder must report
(a)at the time or times; and
(b)at a place or in a manner;
specified by the Minister from time to time.
8506 – The holder must notify immigration at least 2 working days in advance of any change     in the holder’s address. [note: Immigration means the Department administered by the Minister administering the Migration Act 1958.]
8564 – The holder must not engage in criminal conduct.
Therefore, the applicant meets cl.050.223. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
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.
At hearing the Tribunal discussed the certificates made under s.375A and s.376 of the Migration Act, and the applicant did not make any submissions about their validity or otherwise.
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.050.211 of Schedule 2 to the Regulations; and
·cl.050.212 of Schedule 2 to the Regulations; and
·cl.050.221 of Schedule 2 to the Regulations; and
·cl.050.223 of Schedule 2 to the Regulations
The Tribunal also directs the primary decision maker
·to indicate to the applicant that conditions 8101, 8207, 8401, 8506 and 8564 will be imposed if the visa is granted.
C. Packer
Member

[2021] AATA 2534

15 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Appeal