1804530 (Migration)

[2019] AATA 2711

1804530 (Migration) [2019] AATA 2711 (18 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1804530

MEMBER:Helena Claringbold

DATE:18 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 April 2019 at 8:25am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Bangladesh – unlawful non-citizen – not a relevant eligible non-citizen – protection visa refused – seeking ministerial intervention – no application for substantive visa – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5(9), 48A, 48B, 85, 137J, 140, 195A, 189, 345, 351, 417
Migration Regulations 1994 (Cth), r 2.20; Schedule 2, cls 050.211, 050.212, 050.221

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. On 29 January 2018, [the] applicant, applied for a Bridging E (Class WE) visa.

2. On 6 February 2018, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The refusal was based on the applicant’s not meeting cl.050.211(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act).

3. On 20 March 2019, the applicant appeared before the Tribunal to give evidence and present arguments. He provided the Tribunal with a copy of the delegate’s decision record. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration the evidence in the Department of Immigration and Border Protection’s case file and Tribunal’s case file and the evidence given at the Tribunal hearing.

   ISSUE

6. The issue in this matter is whether the applicant can meet cl.050.211(2) of Schedule 2 to the Regulations.

   CLAIMS AND EVIDENCE

7. At the time of application, 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 Regulations.

8. Clause 050.211 of Schedule 2 to the Regulations defines that, at the time of application:

   (1)      the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

   (2)the applicant was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17). 

   The applicant must continue to satisfy this criterion at the time of decision: cl.050.221 of Schedule 2 to the Regulations.

   Does the applicant meet cl.050.211(1) of Schedule 2 to the Regulations?

9. The delegate’s decision record details that, at the time of application, the applicant was an unlawful non-citizen. Accordingly, the applicant meets cl.050.211(1) of Schedule 2 to the Regulations.

10. Clause 050.211(2) of Schedule 2 to the Regulations requires that the applicant was not an eligible non-citizen of the kind set out in regulation 2.20(7), (8), (9), (10), (11) or (17) which defines that:

    The applicant must have been refused or bypassed immigration clearance[1] and must have applied for a protection visa that has not been finally determined or the applicant or Minister has applied for judicial review of a decision to refuse a protection visa.[2] The applicant must also:

    -be under 18 years old and certain child welfare authorities certified that release from detention is in the applicant’s best interests and the Minister is satisfied that arrangements are made for his or her care and welfare;[3] or

    -have turned 75, and the Minister is satisfied of adequate arrangements for community support of the applicant;[4] or

    -have a special need (based on health or previous experience of torture or trauma) that cannot properly be cared for in detention and the Minister is satisfied of adequate arrangements for community support of the applicant;[5] or

    -be the spouse or de facto partner of an Australian citizen, permanent resident or eligible New Zealand citizen; and the Minister is satisfied that the relationship is genuine and continuing; and the applicant is nominated by that person.[6] Members of the family unit of such a person will also meet this criterion,[7] or

    -be a the non-citizen who is an unlawful non-citizen; and section 195A of the Act is not available to the Minister in relation to the grant of a visa to the non-citizen; and (c)  the Minister is satisfied that the non-citizen's removal from Australia is not reasonably practicable at that time.

    [1] Regulation 2.20(7)(a), (8)(a), (9)(a) and (10)(a). A person to whom r.2.20(11) applies does not have to have been refused or bypassed immigration clearance, but must be a member of the family unit of a person who has.

    [2] Regulation 2.20(7)(b),(8)(b),(9)(b) and (10)(b).

    [3] Regulation 2.20(7)(c)-(e).

    [4] Regulation 2.20(8)(c) and (d).

    [5] Regulation 2.20(9)(c) and (d).

    [6] Regulation 2.20(10)(c)-(e).

    [7] Regulation 2.20(11).

11. The applicant was born in [year].  He is a citizen of Bangladesh.  He told the Tribunal that his parents and two siblings live in Bangladesh and he has one sibling living in [another country].  He stated that he has never been in a partner relationship. He said that he suffers from headaches, back pain and allergies and has lived in shared housing accommodation since coming to [City 1, Australia] in July 2013.

12. At the time of application the applicant was [age] years old. He provided the Tribunal with his immigration history and this is detailed in this decision record as follows: in 2013, the applicant travelled from Bangladesh to [one country]. He then travelled to [a second country] before travelling by boat to Australia.  He was detected by the Australian Border Force and [in] May 2013, he arrived into [City 2] as an unlawful arrival. On 10 July 2013, he was released from [a] Detention Centre.

13. On 11 July 2013, he arrived in [City 1] and has lived in [City 1] since that time. In July 2013, he lodged an application for a protection visa and was assisted by migration agent number one. In 2015, he was advised by the Department of Immigration and Border Protection (the Department) that the protection visa application was refused. The migration agent failed to advise him about the invitation for him to apply for a Temporary Protection Visa.  In the middle of 2015, migration agent number two, called the applicant and told him that, migration agent number one had left Australia and if he wanted to apply for another visa, it could be done through migration agent number two. In the middle of 2015, migration agent number two told him he needed to depart Australia. The applicant stated that he told the migration agent that, he had not attended the Department of Immigration and Border Protection and had not been given an opportunity to have his claims heard.

14. On 3 October 2017, an application for a protection visa was lodged and was deemed invalid.  On 13 October 2017, a Ministerial Intervention Request was deemed inappropriate to consider.  No further visa applications have been lodged by the applicant. The applicant stated that he has been misrepresented by his two previous migration agents and has not been provided an opportunity of procedural fairness.  The applicant seeks grant of the bridging visa to enable him to seek Ministerial Intervention.

15. Regulation 2.20(7), (8), (9), (10) and (11) all require the applicant to be a person who has been refused or bypassed immigration clearance[8] and must have applied for a protection visa that has not been finally determined or the applicant or Minister has applied for judicial review of a decision to refuse a protection visa.[9]

    [8] Regulation 2.20(7)(a), (8)(a), (9)(a) and (10)(a). A person to whom r.2.20(11) applies does not have to have been refused or bypassed immigration clearance, but must be a member of the family unit of a person who has.

    [9] Regulation 2.20(7)(b), (8)(b), (9)(b) and (10)(b).

16. The applicant was [age] years old when he applied for the Bridging E visa. On his evidence he is a person who in May 2013, bypassed immigration clearance and was detained by the Department. The applicant then applied for a protection visa which was finally determined, prior to the time of application for the Bridging E visa. There is no evidence that, at the time of application, the applicant had a protection visa application not determined or had any ongoing judicial reviews in connection with the applicant or the Minister for Home Affairs. The applicant told the Tribunal that he has never had a partner and has no family members in Australia. On the evidence, at the time of application, the applicant was not a member of the family unit of a relevant person. Therefore the applicant is not an eligible non-citizen as set out in r.2.20(7), (8), (9), (10) or (11) of the Act.

17. Regulation 2.20(17) requires that the applicant is an unlawful non-citizen section and s.195A of the Act is not available to the Minister in relation to the grant of a visa to the non-citizen; and the Minister is satisfied that the non-citizen's removal from Australia is not reasonably practicable at that time. Section 195A of the Act applies to a person who is in detention under section 189.  As the applicant is a person, who at the time of application, was not in detention, s.195A of the Act does not apply to him and he is not an eligible non-citizen as set out in r.2.20(17) of the Act.

18. At the time of application the applicant is not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) and (17). 

19. Accordingly, the applicant meets cl.050.211(2) of Schedule 2 to the Regulations.

20. Therefore, the applicant meets cl.050.211 of Schedule 2 to the Regulations.

21. As the Tribunal determined that the applicant meets cl.050.211 of Schedule 2 to the Regulations, it will go on to consider whether the applicant meets any of the other criteria for the grant of the visa.

    Does the applicant meet any of the other criteria for the grant of the visa?

22. At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9) of Schedule 2 to the Regulations. The applicant must continue to satisfy this criterion at the time of decision: cl.050.221 of Schedule 2 to the Regulations.

23. On the visa application form signed by the applicant on 21 January 2018, the applicant in response to question 9, ‘Please select the section that is most appropriate to your circumstances (Additional information may be provided at Question 15 to support your application)’ the applicant placed ‘x’ against, ‘Applicant for a substantive visa’.

24. In response to question 10, ‘Applicant for a substantive visa.  Are you waiting for a decision (including a decision from a review body such as the Administrative Appeals Tribunal) in relation to an application for a visa other than a bridging visa?’ the applicant placed ‘x’ against ‘no’.

25. In answer to the question, ‘Do you intend to apply for a substantive visa (i.e. a visa other than a bridging visa)’ the applicant placed ‘x’ against ‘no’.

26. In response to question 15, ‘Additional information.  Please provide any additional information that may be relevant to your application, including details of any outstanding visa application(s), merits review proceedings, judicial review proceedings, ministerial intervention requests and any other steps you are taking to resolve your migration status 9if necessary please attach additional pages).  Note: In order to satisfy the criteria for the grant of a Bridging visa E, an applicant must satisfy the Department that he or she will abide by any conditions to be imposed on the visa if granted and, if requested lodge a security for compliance with those conditions’, the applicant stated ‘I am writing this form to renew for my immi card and medicare card which has expired long time ago.’

27. The applicant’s migration agent told the Tribunal that the applicant is seeking the grant of the bridging visa to enable him to seek Ministerial Intervention. 

    Acceptable arrangements to depart Australia

28. Clause 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: Chenv 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]).

29. There is no evidence before the Tribunal that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. For these reasons, the Tribunal is not satisfied that at the time of application the applicant was making nor was the subject of acceptable arrangements to depart Australia. Therefore, the applicant does not meet cl.050.212(2) of Schedule 2 to the Regulations.

    Substantive visa application

30. Clause 050.212(3) of Schedule 2 to the Regulations, requires that at the time of making the bridging visa application, 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.

31. ‘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.

32. There is no evidence before the Tribunal that the applicant has made a valid application for a substantive visa that has not been finally determined. Neither is there any evidence that the applicant would apply for such a visa within a period specified for doing so. Having regard to the applicant’s migration history, the applicant may be affected by s.48 of Act in relation to any future applications. Accordingly, the Tribunal is not satisfied that the applicant meets cl.050.212(3) of Schedule 2 to the Regulations.

    Judicial review, merits review and other applications

33. A number of alternate subclauses in cl.050.212 require that at the time of application, there be an application for judicial review or merits review of a specified type of decision, or that the applicant has made another specified application.

34. There is nothing before the Tribunal to indicate that the applicant or the Minister made any application for judicial review. Accordingly, the Tribunal is not satisfied that the applicant meets cl.050.212(3A) and cl. 050.212(4)(a) and (aa) of Schedule 2 to the Regulations. There is nothing to indicate that the applicant had applied for revocation of a visa cancellation or for merits review of such a decision or that he will make such an application. The applicant does not meet cl.050.212(4)(b), (ba), (bb), (c) or (d) of Schedule 2 to the Regulations. Therefore, the applicant does not meet cl.050.212(4) of Schedule 2 to the Regulations.

35. There is no evidence before the Tribunal that the applicant had sought a declaration that the Act does not apply to him. Nor, is there any evidence to suggest that a member of the applicants’ family applied for such a declaration. There is no evidence that the applicant sought review of a decision made under the Australian Citizenship Act 2007 or that a member of his family applied for such a review. Therefore, the applicant does not meet cl.050.212(4AAA), cl.50.212(4AA) and cl.050.212(4AB) of Schedule 2 to the Regulations.

    Cancellation of a previous visa

36. An applicant meets the requirements of cl.050.212(5) or (5A) if she or he held a visa that was cancelled under s.140(1), (2) or (3) of the Act because of the cancellation of another person’s visa and that other person has applied for review of their visa cancellation (or in the case of a cancellation under s.137J of the Act has applied for revocation of the cancellation or review of a decision made under s.137L of the Act not to revoke). Alternatively, the applicant will meet the requirements of those subclauses if the Tribunal is satisfied the other person would make such an application.

37. There is no evidence before the Tribunal that the applicant’s visas had been cancelled under s.140 or s.137J of the Act. There is no evidence that the applicant had applied for review of a visa cancellation or for revocation of the cancellation or for a review of a decision not to revoke. On the evidence before it, the Tribunal finds that the applicant does not meet cl.050.212(5) and (5A) of Schedule 2 to the Regulations.

    Ministerial intervention

38. There is no evidence that 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 or that s.48A does not apply. The evidence is that the applicant previously sought a determination under s.48B of the Act. Therefore, the applicant does not meet cl.050.212(5B) of Schedule 2 to the Regulations.

39. There is no evidence before the Tribunal that the Minister has decided, under s.345, s.351, or s.417 of the Act, to substitute a more favourable decision for the decision of the Tribunal but the applicant cannot, for the time being, be granted a substantive visa because of a determination under section 85 of the Act. The Tribunal is not satisfied that the applicant meets cl. 050.212(6AA) of Schedule 2 to the Regulations.

40. There is no evidence that the applicant is the subject of a decision that relates to a visa application made in Australia, or a decision to cancel a visa and has made a request to the Minister to substitute a more favourable decision under s.345, s.351, or s.417 of the Act. The decision in question must be a decision for which the Minister has the power to substitute a decision under s.345, s.351, or s.417 of the Act. The applicant told the Tribunal that he had previously sought Ministerial Intervention which was deemed inappropriate to consider. There is no evidence that the applicant is the holder of a Bridging E visa as a result of him meeting cl.050.212(6AA) or that the Minister had decided under section s.345, s.351 or s.417 of the Act to substitute a more favourable decision for the decision of the Tribunal but the applicant cannot, for the time being, be granted a substantive visa because of a determination under section 85 of the Act. There is no evidence that the applicant held a Bridging E visa when his application was made. Therefore, the applicant does not meet cl.050.212(6) and cl.050.212(6A) and cl.050.212(8).of Schedule 2 to the Regulations.

41. There is no evidence that the applicant holds, or has held, a Bridging E visa granted before 1 July 2009 on the basis of the applicant meeting cl.050.212(6) or (6A) and the applicant is the subject of a decision for which the Minster has the power to substitute a more favourable decision under s.345, s.351 or s.417 of the Act and before 1 July 2009 the applicant made a request to the Minister to substitute a more favourable decision under s.345, s.351 or s.417 of the Act and the Minister has not yet made a decision to substitute a more favourable decision under section s.345, s.351 or s.417 of the Act. Therefore, the applicant does not meet cl.050.212(6B) of Schedule 2 to the Regulations.

    Criminal Detention

1. There is nothing before the Tribunal to suggest that the applicant is, or had ever been, in criminal detention. The Tribunal is not satisfied that the applicant meets cl.050.212(7) of Schedule 2 to the Regulations.

   Judicial review – Class BC or BI visa refusal

2. There is nothing before the Tribunal to indicate that the applicant or a member of the applicant’s family unit is the subject of judicial review proceedings that have not been completed. Therefore, the applicant does not meet cl.050.212(9) of Schedule 2 to the Regulations.

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

4. 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

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

   Helena Claringbold
   Member