2012695 (Migration) [2020] AATA 4852 (14 August 2020)

Last Updated: 2 December 2020

2012695 (Migration) [2020] AATA 4852 (14 August 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 2012695

MEMBER: Nathan Goetz

DATE: 14 August 2020

PLACE OF DECISION: Sydney

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

Statement made on 14 August 2020 at 1:58pm

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful Non-Citizen – no outstanding migration matters –criminal conviction – no grounds for the applicant to be granted a bridging visa –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 46K, 48, 73, 91, 137K, 140, 195A
Migration Regulations 1994, Schedule 2, cl 050.212

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 Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).
2. The applicant arrived in Australia [in] September 2012 as an unauthorised maritime arrival and claims to be a citizen of Sri Lanka. He was detained in an immigration detention centre on 10 September 2012.
3. On 13 February 2013 the applicant was granted a humanitarian stay visa until 20 February 2013 after the Minister intervened under s.195A of the Act, classing the applicant as immigration cleared. The same day, the applicant was granted a bridging visa until 13 August 2013. The applicant was released from immigration detention.
4. On 9 September 2013, the applicant lodged a protection visa application that was deemed invalid due to s.91K of the Act. On 11 November 2014 the Minister lifted the s.46A bar and s.91L bar which allowed the applicant to be granted a further bridging visa.
5. On 19 November 2014, and again on 20 August 2015, the applicant was granted further bridging visas.
6. On 29 September 2015 the Minister lifted the s.46A bar that had prevented the applicant from lodging a temporary protection visa or a safe haven enterprise visa.
7. On 22 December 2015 the applicant applied for a temporary protection visa and on 10 February 2016 the applicant was granted an associated bridging visa. On 13 July 2016 the temporary protection visa was refused.
8. The refusal decision was affirmed by the Immigration Assessment Authority on 26 October 2016: [case number deleted]
9. [In] November 2016 the applicant lodged judicial review proceedings in the Federal Circuit Court against the Immigration Assessment Authority’s decision.
10. On 28 November 2016 the bridging visa associated with the temporary protection visa application ceased given the decision of the Immigration Assessment Authority. A subsequent bridging visa application was granted on 5 May 2019 in connection with the judicial review proceedings.
11. [In] May 2019 the Federal Circuit Court upheld the decision of the Immigration Assessment Authority: [details deleted]
12. [In] May 2019 the applicant lodged proceedings in the Federal Court against the decision of the Federal Circuit Court.
13. [In] November 2019 the Federal Court upheld the decision of the Federal Circuit Court: [details deleted] (21 November 2019).
14. The bridging visa associated with the temporary protection visa application ceased on 28 November 2016 and the applicant became an unlawful non-citizen.
15. On 10 December 2019 the applicant lodged a request for Ministerial Intervention under s.48b of the Act to allow the applicant to lodge a safe haven enterprise visa.
16. On 17 December 2019 the applicant was granted a bridging visa in connection with his request for Ministerial Intervention.
17. On 19 December 2019 the applicant’s bridging visa which had been granted in connection with his judicial proceedings expired, and his bridging visa connected to his Ministerial Intervention request became effective.
18. [In] February 2020 the applicant was remanded into criminal custody on charges of:
    • Stalk/intimidate intend fear physical harm etc harm (personal)
    • Carry out sexual assault with another without consent
    • Fail to appear in accordance with bail undertaking
19. On 13 May 2020 the applicant’s request for Ministerial Intervention was refused. The bridging visa connected with this application ceased on 17 March 2020 and the applicant became an unlawful non-citizen. He was in criminal custody.
20. [In] June 2020 the applicant was convicted of the above offending. He was sentenced as follows:
    • Stalk/intimidate intend fear physical harm etc harm (personal) – 2-month community correction order.
    • Carry out sexual assault with another without consent – 2-year community correction order.
21. There is no information about the sentence imposed for the charge of failing to answer bail.
22. [In] June 2020, that is, the same day he was sentenced, he was released from criminal custody. The applicant was located and detained by the Australian Border Force as an unlawful non-citizen and placed into an immigration detention centre where he remains to date.
23. On 1 August 2020, the applicant applied for four bridging visas. All were refused by a delegate on 6 August 2020.
24. On 10 August 2020 the applicant applied to the Tribunal for a review of one of the decisions to refuse to grant him a bridging visa. The applicant provided the Tribunal with the delegate decision. As described in the delegate decision, the matter being considered by the Tribunal relates to the ‘third’ application for a bridging visa. The other bridging visa decisions were ‘considered separately’.
25. The applicant applied for the visa on 4 August 2020. 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 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.212.
26. The decision to refuse to grant the visa was made on the basis that the applicant did not meet cl.050.212.
27. On 14 August 2020 the applicant appeared at the Tribunal by audio-visual link from an immigration detention centre to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
28. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

29. The issue in this case is whether there are grounds for the applicant seeking the bridging visa.
30. At the Tribunal hearing, the applicant said that he completed the bridging visa application with the assistance of a fellow detainee. He received the refusal decision but did not fully understand it. He did not understand why the delegate refused to grant him the bridging visa. He applied to the Tribunal for a review of the refusal decision because the person who helped him apply for the bridging visa told the applicant he could do so.
31. The Tribunal took the applicant to Question 9 of his bridging visa application form. That question asked the applicant to select the section that most appropriate response to describe his circumstance. The applicant had selected ‘judicial review’. That selection directed the reader to Question12 where the applicant was asked ‘Have you commended judicial proceedings in relation to a decision to refuse or cancel a substantive visa?’ To that question, the applicant answered in the negative. Question 12 also asked whether the applicant was a party to other proceedings concerning his immigration status and the applicant answered in the affirmative. That response directed the applicant to Question 15 where he was asked to provide additional information. To question 15 the applicant responded as follows:
32. “I am in immigration detention centre now. I can’t go back to own country because of corona virus.

In my country my life is not safe because I am witness of death.

The LTTE member karna group kill one person. I am the witness of that death that’s why my life is not safe for me in my country. The death person name is [Name 1].

Sri Lanka has election now if karna group will be become MP my life is more dangerous. I already inform to TPV interview by Department of Home Affairs did not understand probably.

Karna has a support of Sri Lanka government, on that situation my life is not safe in Sri Lanka.”

33. The Tribunal asked the applicant to explain why he selected ‘judicial review’ but wrote that there were no judicial review proceedings, and why he wrote that he was a party to other proceedings concerning his immigration status. The applicant said his circumstances meant that he could not return to Sri Lanka.
34. The applicant said that he had no outstanding migration matters. He selected ‘judicial review’ and that he was a ‘party to other proceedings concerning his immigration status’ because he did not have a proper understanding.
35. The applicant told the Tribunal that he applied for a bridging visa to remain in Australia. It would be difficult to return to Sri Lanka. He noted the political issues in his home country and that the COVID-19 virus meant that he would have difficulty obtaining a job. He asked the Tribunal to give him a visa to remain in Australia. He has been in Australia for eight years and he has been working here. He has a tax file number and was used to life in Australia. He wanted a short-term visa and said that after he was granted a short-term visa, he could tell the Department that he would return to Sri Lanka if the situation improved.

The grounds for seeking the visa - cl.050.212

36. 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.
37. As explained to the applicant at the Tribunal hearing, a bridging visa application involves a two-step process. The first step is for the decision-maker to be satisfied that there are grounds for seeking the visa. If satisfied that there are grounds for seeking the visa, the decision-maker then considers whether the applicant would abide by the conditions (if any) on a bridging visa.
38. Despite what was written in the bridging visa application, the applicant conceded at the hearing that he did not meet any grounds for being granted the bridging visa. It is clear that applicant applied for a bridging visa to be released from immigration detention with the hope of remaining in Australia. That does not mean that he satisfies the grounds for the grant of a bridging visa.
39. For the reasons below, the applicant does not meet cl.050.212.

Acceptable arrangements to depart Australia

40. 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 Department’s Procedures Advice Manual 3 (PAM3), whilst not binding on the Tribunal, nevertheless provides some guidance: Chen v 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]).
41. There is no evidence that the applicant satisfies cl.050.212(2)

Substantive visa application

42. 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.
43. ‘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 application being made: s.5(9) of the Act.
44. There is no evidence that the applicant satisfies cl.050.212(3)

Judicial review, merits review, s.137K revocation

45. Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.
46. There is no evidence that the applicant satisfies cl.050.212(3A).

Subclause 050.212(4) is met if:

Judicial review – substantive visa decision (other than refusal)

(a) the applicant has applied for judicial review of a decision in relation to a substantive visa (other than a decision to refuse the visa); or

(aa) the Minister has applied for judicial review of a decision in relation to the applicant’s substantive visa application (other than a decision relating to refuse the visa); or

Visa cancellation – merits review / s.137K revocation

(b) the applicant has applied for merits review of a decision to cancel a visa; or

(ba) the applicant has applied under s.137K for revocation of the cancellation of a visa; or

(bb) the applicant has applied for merits review of a decision under s.137L not to revoke the cancellation of a visa; or

(c) the Minister (or Tribunal) is satisfied that the applicant will make an application of a kind referred to in cl.050.212(4)(b) or (ba) or (bb); or

Judicial review – validity of a law

(d) the applicant has applied for judicial review of the validity of a law that affects their eligibility to apply for a substantive visa or their entitlement to be granted or continue to hold a substantive visa.

47. There is no evidence that the applicant satisfies cl.050.212(4).

Judicial review – member of the family unit

48. Subclause 050.212(4AA) is met if the applicant is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in cl.050.212(3A)(b) or (4)(a) or (4)(aa) or (4)(d), that other person is not a party to a representative proceeding, and the applicant made a combined substantive visa application with that other person’s application.
49. There is no evidence that the applicant satisfies cl.050.212(4AA).

Court declaration / review of citizenship decision

50. Subclause 050.212(4AAA) is met if the applicant has applied for a declaration from a Court that the Migration Act does not apply to the applicant, or has applied for judicial review or merits review of a decision made in relation to the applicant under the Australian Citizenship Act, and those proceedings have not been completed.
51. There is no evidence that the applicant satisfies cl.050.212(4AAA).

Subclause 050.212(4AB) is met if the applicant is a member of the immediate family (as defined under r.1.12AA) of a person who meets the requirements of cl.050.212(4AAA), or is a brother or sister (who has not turned 18) of a person who meets the requirements of cl.050.212(4AAA) and who has not turned 18.

52. There is no evidence that the applicant satisfies cl.050.212(4AB).

Consequential cancellation (review/revocation of primary cancellation)

53. Subclause 050.212(5) is met if the applicant held a visa that was cancelled under s.140(1) or (3) because another person’s visa was cancelled, and that other person has applied for review of their visa cancellation decision (or alternatively, the Tribunal is satisfied the other person will make such an application).
54. There is no evidence that the applicant satisfies cl.050.212(5).
55. Subclause 050.212(5A) is met if the applicant held a visa that was cancelled under s.140(1), (2) or (3) because another person’s visa was cancelled under s.137J, and that other person has applied for revocation of their visa cancellation under s.137K or has applied for merits review of a non-revocation decision made under s.137L (or alternatively, the Tribunal is satisfied the other person will make such an application).
56. There is no evidence that the applicant satisfies cl.050.212(5A).

Ministerial intervention

57. Subclause 050.212(5B) is met if the applicant is a person to whom s.48A of the Act applies, and the applicant has made a request to the Minister to determine under s.48B that s.48A does not apply. There must not have previously been such a request under s.48B in relation to the applicant, or a request to the Minister for the exercise of the Minister’s power under ss.345, 351 or 417 of the Act.
58. There is no evidence that the applicant satisfies cl.050.212(5B).
59. Subclause 050.212(6) is met if the applicant is the subject of a decision that relates to a visa application made in Australia, or a visa cancellation and has made a request to the Minister to substitute a more favourable decision under ss.345, 351 or 417 of the Act. The decision in question must be a decision for which the Minister has the power to substitute a decision under ss.345, 351 or 417, and there must not have previously been such a request, or a request for a determination under s.48B of the Act. _
60. There is no evidence that the applicant satisfies cl.050.212(6).

Compelling need to work

61. Subclause 050.212(6A) is met if the applicant holds a Bridging E visa that was granted on the basis of meeting cl.050.212(6AA), the applicant is the subject of a favourable exercise of the Ministerial power under ss.345, 351 or 417 of the Act, and the Tribunal is satisfied that the applicant has a compelling need to work.
62. There is no evidence that the applicant satisfies cl.050.212(6A).
63. Subclause 050.212(6AA) is met if the Minister has substituted a decision under ss.345, 351 or 417 of the Act, but the visa has not been granted because of a visa cap in operation under s.85 of the Act.
64. There is no evidence that the applicant satisfies cl.050.212(6AA).
65. Subclause 050.212(6B) is met if the applicant has an outstanding request to the Minister under ss.345, 351 or 417 of the Act made before 1 July 2009, and holds, or has held, a Bridging E visa granted before 1 July 2009 on the basis of the applicant meeting cl.050.212(6A) or, for visa applications made on or after 14 September 2009, cl.050.212(6) or (6A).
66. There is no evidence that the applicant satisfies cl.050.212(6B).

Criminal Detention

67. Subclause 050.212(7) is met if the applicant is in criminal detention, and no criminal justice stay certificate or warrant is in force. A person is in ‘criminal detention’ if he or she is serving a term of imprisonment, including periodic detention, following conviction for an offence, or is in prison on remand. However, a person is not in criminal detention where they are subject to a community service order, on parole after serving part of a term of imprisonment, or on bail awaiting trial (r.1.09). Periodic detention is defined in r.1.03 to mean a system of restriction of liberty by which periods at liberty alternate with periods in prison.
68. There is no evidence that the applicant satisfies cl.050.212(7).
69. Subclause 050.212(8) is met if the applicant holds a Bridging E visa that was granted as a result of a valid application for a substantive visa that could be granted onshore and is subject to condition 8101, and the Tribunal is satisfied that the applicant has a compelling need to work.
70. There is no evidence that the applicant satisfies cl.050.212(8).

Judicial review – Class BC or BI visa refusal

71. Subclause 050.212(9) is met if a decision to refuse the applicant (or a member of the family unit who has made a combined application) a Class BC or BI visa is the subject of valid judicial review proceedings that have not been completed, and the applicant (or member of the family unit) does not satisfy cl.010.211(6)(c) for the grant of a Bridging A (Class WA) visa.
72. There is no evidence that the applicant satisfies cl.050.212(9).

CONCLUSION

73. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
74. 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

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

Nathan Goetz
Member