1822808 (Migration)

[2018] AATA 3717

1822808 (Migration) [2018] AATA 3717 (14 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1822808

MEMBER:Linda Symons

DATE:14 August 2018

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 2018 at 11:09am

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Whether the applicant has made, or would make, a valid application for a substantive visa within the prescribed period – Where the applicant intends to apply for a protection visa – Where the applicant has previously made a protection visa application which has been finally determined – Applicant is barred from making a further application for a protection visa – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5(9), 48A, 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212

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 to the Department of Home Affairs (the Department) for the visa on 1 August 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.050.212.

3. The decision to refuse to grant the visa was made on 3 August 2018 on the basis that he did not have an ongoing application for a substantive visa or an application for merits review or judicial review in relation to a substantive visa application. On 7 August 2018, he applied to the Tribunal for a review of that decision.

4. The applicant appeared before the Tribunal on 14 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

6. The issue in this case is whether the applicant satisfies the requirements of cl.050.212.

7. 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.

8. In this case, the applicant is seeking to meet cl.050.212(3). The applicant does not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the applicant does not meet cl.050.212.

   Substantive visa application

9. 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.

10. ‘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.

11. In his application for a Bridging visa, the applicant stated that he intends applying for a Protection visa. He gave evidence to the Tribunal that he lodged an application for a Protection visa and his application was refused by the Department. He stated that he had instructed his former migration agent to lodge an application for review with the Tribunal but that was not done as he did not pay his migration agent’s fees. His evidence is consistent with the records of the Department which indicate that he applied for a Protection visa on 17 May 2018 and his application was refused by the Department on 8 June 2018. He did not seek a review of that decision before the Tribunal.

12. The evidence before the Tribunal indicates that the applicant has not lodged another application for a Protection visa. In any event, he is prevented from doing so under s.48A of the Act.

13. The applicant gave evidence that he has not lodged any other application for a substantive visa. He stated that he does not have any pending application.

14. The applicant gave evidence that he has not made any arrangements to depart Australia. He stated that he is not willing or able to return to Pakistan. He stated that he wishes to be released from detention so that he can make an application for a visa to travel to another country. When asked whether he has a current passport, he stated that he does. When asked about the whereabouts of his passport, he responded that it is at his home but neither he nor his girlfriend can locate it.

15. The Tribunal raised as an issue with the applicant the fact that he does not satisfy the threshold criteria for a Bridging visa. He responded that he is not aware of the legal requirements for a Bridging visa and does not have a migration agent. The Tribunal suggested that he obtain immigration advice from a migration agent.

16. Having considered all the evidence, the Tribunal is not satisfied that the applicant meets the time of application criteria for a Bridging visa.

17. In view of the above, the Tribunal finds that the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

18. 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

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

    Linda Symons
    Member