1812261 (Migration)

[2020] AATA 4811

1812261 (Migration) [2020] AATA 4811 (11 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1812261

MEMBER:James Silva

DATE:11 September 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 11 September 2020, at 1:00pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful non-citizen – eligible non-citizen of the kind set out in r.2.20(17) – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73

Migration Regulations 1994 (Cth), r 2.20; Schedule 2, cl 050.211

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 applied for the visa on 1 March 2018. 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.050.211.

3. The decision to refuse to grant the visa was made on 9 April 2018 on the basis that the applicant did not meet cl.050.211.  

4. The applicant appeared before the Tribunal on 11 September 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. It was held via teleconference.

5. The applicant was represented in relation to the review by his registered migration agent, who did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant satisfies cl.050.211, which requires that an applicant must be a non-citizen with a certain immigration status.

8. Clause 050.211 is met if, 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). 

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

10. In the present case, the applicant was an unlawful non-citizen on 1 March 2018, when he applied for the Bridging E visa. He therefore satisfies cl.050.211(1).

11. In relation to cl.050.211(2), r.2.20(17) is relevant to the applicant’s circumstances. This sub-regulation reads:

    (17)  This sub-regulation applies to a non-citizen if:

    a)the non-citizen is an unlawful non-citizen; and

    b)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.

12. At hearing, the applicant said that he did not hold a visa at the time of application, and still does not have one. He said he did not really understand the decision under review. The Tribunal explained the requirement for the grant of a Bridging visa E, in particular cl.050.211. The applicant noted this without direct comment. He said that he has been in Australia for many years, loves this country and has complied with all laws. He gave reasons why he could not return to Bangladesh, at least for the time being. The Tribunal explained the scope of this review. It undertook to note his comments, and suggested he discuss his options with his migration agent or the Department. 

13. The Tribunal finds that the applicant is a person to whom r.2.20(17) applied at the time of application, for the following reasons:

    §  As noted above, he was an unlawful non-citizen at the time of application: r.2.20(17)(a).[1]

    §  Section 195A(1) states that ‘this section applies to a person who is in detention under section 189’. As the applicant was not in detention at the time of application, s.195A is not available to the Minister in relation to the grant of a visa: r.2.20(17)(b).

    §  The Tribunal is satisfied on the available evidence that, despite the applicant’s status as an unlawful non-citizen, his removal had not been reasonably practicable (at the time of application): r.2.20(17)(c).

    [1] The delegate’s decision record, which the applicant provided with his application for review, includes information about his visa status at the time of application.

14. As the applicant is an eligible non-citizen of the kind set out in r.2.20(17), he does not satisfy cl.050.211(2).

15. Therefore, the applicant does not meet cl.050.211.

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

17. 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.

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

    James Silva
    Member