Bias in the Review Tribunals

Obtaining a Bridging Visa E after visa cancellation has many obstacles. This article covers the situation where the former visa holder has lodged a review application to the Administrative Appeals Tribunal and now seeks a BVE in order not to be detained. Once visa cancellation has occurred it is essential to lodge an application to the AAT in order to activate an entitlement to a BVE.

The key criterion used by Immigration to decline a BVE is paragraph 050.223 namely:

“The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.”

The conditions that can be applied to a BVE following a visa cancellation are in paragraph 050.617 noting that the BVE to be granted after visa cancellation is the one that meets the criterion found in paragraph 050.212(4)(b) ie that “the applicant has applied for merits review of a decision to cancel a visa;” :

No other subparagraph covers the situation of an AAT review pending apart from 050.617 which states :

“(1) In any other case — any 1 or more of conditions 8101, 8104, 8116, 8201, 8207, 8401, 8402, 8505, 8506, 8507, 8508, 8510, 8511, 8512 and 8548 may be imposed.

(2) Condition 8116 must not be imposed unless the applicant is in a class of persons specified by the Minister, by legislative instrument, for this subclause.”

Note, of course, that the imposition of any condition is purely discretionary.

But the PAM, in a policy sense funnels the imposition of conditions which are discretionary. There is a detailed policy section on the BVE’s and this needs to be read in detail. Here is what is called the purpose :

“47 Purpose

The purpose of visa conditions is to ensure that the policy intent of the migration program is reflected in the behaviour of visa holders. Attaching conditions to BVEs, provides the structure for engagement between the applicant and the department and can assist in achieving an immigration outcome.

It is important that the holder of a BVE 050 understands that they have a responsibility to maintain a relationship with the department. In some instances, the person’s history and experience with the department will be of such a nature that the decision maker will determine that it is appropriate to ensure that the applicant formally maintains a relationship with the department.”

It is the writer’s view that many officers do not seem to be aware that the imposition of conditions is discretionary. The policy on discretionary conditions tries to skew the decision maker into imposing conditions although the PAM recognises that conditions should not be imposed arbitrarily and that an officer retains the discretion in relation to each condition.

The starting for any discussion with a delegate is to make submissions as to which conditions should be imposed. Here is what the PAM says :

“Although any combination or number of conditions may be imposed on the grant of a BVE 050, it is policy that, as a minimum, the following conditions be imposed on the initial grant of a BVE 050:

8101(no work) and
8201(no study or training for more than 3 months) or 8207 (no study or training while in Australia) and
8401(must report at time and place specified by the Minister) and
8506(must notify the department at least 2 days in advance of any change of address).

As a matter of policy the above is to especially apply (irrespective of 050.617) if the applicant has not maintained contact with the department in regularising their status and becomes unlawful by failure to maintain their immigration status. If the applicant subsequently wishes to apply to have the conditions changed they will need to demonstrate a compelling need to work and/or an acceptable reason for delay (protection visa applicants).

If the application of conditions is discretionary care should be taken not to impose conflicting conditions (for example, 8101 and 8104, 8201 and 8207).

However, this policy should not be applied arbitrarily; officers may grant initial visas without those discretionary conditions attached. As examples of situations where it may be appropriate not to impose condition 8101 on the initial BVE: [Emphasis added]

If the applicant is applying for a BT– 802visa under the vulnerable child provisions and their sponsor is an Australian State/Territory government welfare authority, it would not be appropriate to impose 8101 (as doing so would deny the vulnerable child access to Medicare) or 8201/8207 (as doing so would deny the vulnerable child access to schooling).
If the applicant is applying for a BB–155or B–157 RRV, imposing 8101would prevent them from returning to work after a brief absence from Australia.
If the applicant is on a departure pathway, permission to work will facilitate the resolution of the applicant’s immigration status.

If officers do depart from the above policy, notes detailing the reasons for doing so must be recorded.”

Many migration advisors do not appreciate that in some BVE circumstances the imposition of conditions is totally discretionary. The examples given above are purely examples and do not limit the circumstances when conditions need not be imposed.

For example the PAM does not articulate policy reasons for imposing 8101 (ie no work). If a person has a long term job or runs a business then it could be harsh to impose the no work 8101. Allowing a person to work provides another means whereby Immigration might keep in contact with the former visa holder. Leaving a person destitute would require some justification.

Looking at BVE situations other than visa cancellation, one has to go through the schedule 2 criteria carefully to determine what conditions are mandatory and which are discretionary.

Hence the role of the migration adviser is to first establish with the delegate which conditions is the delegate considering imposing. Some of the conditions relating to reporting and living at a particular address are not worth fighting about.

Note that if a delegate considers that there is a risk an applicant may not abide by the conditions imposed the client could ask that a security bond be imposed. The PAM says :

“52 If decision maker not satisfied applicant will abide by conditions

If not satisfied that the applicant would abide by one or more conditions, decision makers must consider whether to request security.”

The interview

Whether the delegate will impose conditions and what conditions will be imposed will often be based on an interview. The interview needs to be treated like giving evidence in court. The client needs to be thoroughly prepared for the interview. The migration advisor needs to be prepared with either oral or written submissions as to which conditions ought to be imposed.

If the delegate is considering imposing 8101 (no work) then the client must have evidence as to how he or she will financially survive without working. The client also needs to show where he or she will live and give an assurance that he or she will report (if required).

The take home message is that these visa conditions are negotiable and one should not let the delegate off the hook through the imposition of visa conditions almost automatically. Secondly a lot rests of now the client performs in the interview.

If the delegate does impose conditions then applications can be made to vary those conditions. But as stated below this is done by applying for a fresh BVE.

Here is what the PAM says on this:

53.1 Variations sought by visa holder

A BVE holder may wish to vary a reporting condition, study rights, work rights or other visa condition.

A request to vary the conditions attached to a BVE can be considered only in the context of an application for a further BVE. It is not possible to vary the conditions of an existing visa separately from a visa application.

Form 1005 is used for this purpose. Only officers authorised to grant BVEs can decide such applications. If the current BVE 050 has a security attached, an officer authorised under s269 (in addition to being authorised to grant a BVE 050), should be the decision maker.

Note also to keep an eye on when this visa would expire as the expiry date is set by the delegate – see paragraph 050.517 :

In any other case — visa coming into effect on grant and ceasing on a date specified by the Minister for the purpose.

Some final notes about BVE situations.

If a person has had a visa cancelled for a grounds contains in reg 2.43(1)(p) or (q) then one cannot apply for a BE and the task in such cases is to apply immediately for review to the AAT of that visa cancellation – see the Schedule 1 criteria paragraph 1305(3)(g) :

“(g) The applicant has not previously held a visa that has been cancelled on a ground specified in paragraph 2.43(1)(p) or (q).”

Reg 2.43(1)(p) & (q) read :

(p) in the case of the holder of a Subclass 050 Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa —that the Minister is satisfied that the holder:

(i) has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country (other than if the conviction resulted in the holder’s last substantive visa being cancelled under paragraph (oa)); or

(ii) has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country; or

(iii) is the subject of a notice (however described) issued by Interpol for the purposes of locating the holder or arresting the holder; or

(iv) is the subject of a notice (however described) issued by Interpol for the purpose of providing either or both of a warning or intelligence that the holder:

(A) has committed an offence against a law of another country; and

(B) is likely to commit a similar offence; or

(v) is the subject of a notice (however described) issued by Interpol for the purpose of providing a warning that the holder is a serious and immediate threat to public safety;

(q) in the case of the holder of a Subclass 050 Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa —that:

(i) an agency responsible for the regulation of law enforcement or security in Australia has advised the Minister that the holder is under investigation by that agency; and

(ii) the head of that agency has advised the Minister that the holder should not hold a Subclass 050 Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa;

[Emphasis added]

This is discussed in more details elsewhere but the point is made here that if a person’s visa is cancelled under grounds in reg 2.43(1)(p) or (q) then the strategy is to apply for an AAT review and seek an urgent hearing on the grounds the client is in detention. Ordinarily the AAT would hear the matter with 2 weeks or even less in such circumstances. The client needs to be thoroughly prepared for such a hearing.

Barbara DavidsonMay 2, 2016