1721393 (Migration)

[2020] AATA 6203

1721393 (Migration) [2020] AATA 6203 (11 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1721393

MEMBER:Jason Pennell

DATE:11 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Bridging A (Class WA) visas.

Statement made on 11 June 2020 at 11.53am

CATCHWORDS

MIGRATION – Bridging A (Class WA) visa – Subclass 010 (Bridging A) visa – holding a substantive visa at the time of making a valid application in Australia for another substantive visa – applications for protection – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 2.21A, 2.21B; Schedule 2, cls 010.211, 010.221

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 on 12 September 2017 to refuse to grant the applicants Bridging A (Class WA) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 27 July 2017. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that clause 010.211 was not meet by the applicant and as such the criteria for granting a Bridging A (Class WA) visa was not meet by the applicant.

3. [Name] (‘the applicant’) appeared with her husband [name] (‘the applicant’s husband’) before the Tribunal on 14 May 2020 to give evidence and present argument. As a result of the Covid-19 restrictions the hearing was conducted by telephone.  [Name] (‘the applicant’s daughter’) is the applicants daughter and had no specific claims herself separate from the applicant. As a result, she did not appear before the Tribunal and the applicant gave evidence presented arguments on her behalf.  The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Bridging visa A (Class WA) contains one subclass (010) and is for persons who have made an application for a substantive visa in Australia while they held or have applied for a substantive visa. It provides temporary lawful status while their substantive visa application is being processed, including merits review, and judicial review of the substantive visa application if the person held a Bridging visa A or Bridging visa B at the earlier stage of processing. Generally, a valid application for a substantive visa is also an application for a Bridging visa A.

2. The issue in this review is whether the visa applicant meets cl.010.211 for the grant of the visa. Clause 010.211(2) is one of several alternative time of application criteria for a Bridging visa A. To meet this criterion the applicant must (at the time of application) have held an application for a substantive visa at the time they made a valid application in Australia for another substantive visa that could be granted in Australia (e.g. a student visa holder applied for a further student visa), and that new application is still under consideration by the Department or the Tribunal (or the time for seeking review is yet to lapse).

3. Clause 010.211 must be meet by the applicant when the Bridging A (Class WA) (Subclass 010) visa application is lodged. Clause 010.221 which is also includes 010.211 must be met by the applicant at the time a decision is made on that application.

4. Clause 010.211 states as follows: 

   ‘Clause 010.211

   (1)  The applicant meets the requirements of subclause (2), (3), (4), (5) or (6).

   (2)  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)     that application has not been finally determined;

   (c)     he or she held a substantive visa at the time that application was made; and

   (d)     either:

   (i)  he or she has applied for a bridging visa in respect of that application; or

   (ii)  a bridging visa can be granted in respect of that application under regulation 2.21B.

   (3)  An applicant meets the requirements of this subclause if:

   (a)     the applicant:

   (i)  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

   (ii)  held a substantive visa when he or she made the application; and

   (aa)  that application was refused; and

   (b)     either:

   (i)the applicant, or the Minister, has applied, within statutory time limits, for judicial review of a decision in relation to the applicant's substantive visa application

   (ii)  the applicant:

   (A)  is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in subparagraph (i); and

   (B)  made a substantive visa application that was combined with the substantive visa application mentioned in subparagraph (i); and

   (c)     at the time of that application, he or she held a Bridging A (Class WA) or Bridging B (Class WB) visa; and

   (d)     the judicial review proceedings (including proceedings on appeal, if any) are not completed.

   (4)  An applicant meets the requirements of this subclause if:

   (a)     the applicant:

   (i)  holds a Bridging A (Class WA) or Bridging B (Class WB) visa that:

   (A)  was granted as a result of a valid application, made in Australia, for a substantive visa of a kind that could be granted if the applicant was in Australia; and

   (B)  is subject to conditions 8101, 8102, 8103, 8104, 8105, 8107, 8108, 8111, 8112 , 8115 , 8547, 8607 or 8608; and

   (ii)  held a substantive visa when he or she made the substantive visa application; and

   (b)     he or she has not applied for a protection visa; and

   (c)     the Minister is satisfied that the applicant has a compelling need to work.

   (5)  An applicant meets the requirements of this subclause if:

   (a)     the applicant has made a valid application for:

   (iii)  a Partner (Migrant) (Class BC) visa; or

   (iv)  an Aged Parent (Residence) (Class BP) visa; or

   (v)  a Contributory Aged Parent (Residence) (Class DG) visa; or

   (vi)  a Contributory Aged Parent (Temporary) (Class UU) visa; and

   (b)     the application has not been finally determined;

   (c)     the applicant has applied for a bridging visa in respect of that application; and

   (d)     the applicant holds, or has previously held, a Bridging A (Class WA) visa granted under regulation 2.21A in respect of the visa referred to in paragraph (a).

   (6)  An applicant meets the requirements of this subclause if:

   (a)     the applicant has made a valid application for:

   (iii)  a Partner (Migrant) (Class BC) visa; or

   (iv)  an Aged Parent (Residence) (Class BP) visa; or

   (v)  a Contributory Aged Parent (Residence) (Class DG) visa; or

   (vi)  a Contributory Aged Parent (Temporary) (Class UU) visa; and

   (b)  that application was refused; and

   (c)  either:

   (i)the applicant, or the Minister, has applied, within statutory time limits, for judicial review of a decision in relation to the applicant's substantive visa application as the holder of a Bridging A (Class WA) or Bridging B (Class WB) visa;

   (ii)the applicant

   (A)  is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in subparagraph (i); and

   (B)  made a substantive visa application that was combined with the substantive visa application mentioned in subparagraph (i); and

   (d)     the judicial review proceedings (including proceedings on appeal, if any) are not completed; and

   (e)     the applicant holds, or has previously held, a Bridging A (Class WA) visa granted under regulation 2.21A in respect of the visa referred to in paragraph (a).’

5. The Tribunal has considered the applicants circumstances in reference to clause 010.211 for the purposes of conducting the review of the delegates decision and agrees with the delegate that for the reasons detailed in the delegates decision dated 12 September 2017  that clauses 010.211(3), (4), (5) and (6) are not relevant to the applicant’s circumstances in this case.

6. The applicant and the applicant’s daughter arrived in Australia [in] March 2017[1] and made an application for a protection visa dated 18 April 2017. The applicant’s husband arrived in Australia [in] December 2016 and made an application for a protection visa dated 13 January 2017. The applicant’s son ([name]) was born in Australia on [date] and applied for a protection visa on 4 June 2017. The delegate of the Minister for Immigration and Border Protection made a decision on 14 June 2017 to refuse the application for a protection visa by the applicant, the applicant’s daughter and the applicant’s husband. The applicant’s son application for a protection visa was refused by the delegate on 15 September 2017.  

   [1] Department File No [number]; Delegates decision 14 June 2017

7. The departments letter dated 12 July 2017 states that the applicant’s application for a Bridging Visa (Class) (WA) visa was lodged on 27 July 2017.[2]  However, contrary to the date on the applicant’s protection visa applications, being 18 April 2017, the departments letter incorrectly refers to the applicant’s date of visa application as 13 January 2017. That is, the date of the applicant’s husband’s protection visa application and prior to their time of arrival in Australia.

   [2] File 1721393 @ f.15

8. Nevertheless, to qualify for a Bridging visa A pursuant to clause 010.221(2) the applicant must have made a valid application for a substantive visa of a kind that can be granted if the applicants are in Australia, the application the visa must not have been determined and the applicants must have held a substantive visa at the time their application for a Bridging visa A was made. 

9. In this case the applicants applied for a protection visa on 18 April 2017. The application had not been validity determined at the time the applicants made their Bridging visa A application on 27 July 2017. However, there is no evidence that the applicant’s held a substantive visa at the time of their application. Accordingly the tribunal finds that the applicant’s did not hold a substantive visa at the time of their application for the Bridging visa A.  As a result, the visa cannot be granted as the applicants have not complied with the relevant criteria pursuant to clause 010.211(2) in that they did not hold a substantive visa at the time of their application for a Bridging visa A.  

10. Therefore, the Tribunal is finds that the applicants have complied with clause 010.211(2) by reason that they did not hold a substantive visa at the time of their application for a Bridging visa A.

11. The Tribunal affirms the decision not to grant the applicants Bridging A (Class WA) visa A.

Jason Pennell
Senior Member