1828124 (Migration)

[2021] AATA 155

1828124 (Migration) [2021] AATA 155 (12 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBERS:  1828124 and 2013201

MEMBER:James Silva

DATE:12 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 12 January 2021 at 2:39pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 051 (Bridging (Protection visa applicant) – eligible non-citizen – application for judicial review finally determined – combination of two applications for review – Subclass 050 (Bridging (General)) – eligible non-citizen of the kind set out in r.2.20(17) – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 359AA, 363
Migration Regulations 1994 (Cth), r 2.20; Schedule 2, cls 050.211, 051.211

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

APPLICATIONS FOR REVIEW

1. This decision record concerns two applications for review, both of decisions made by delegates 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. At the relevant times, Class WE contained two subclasses: Subclasses 050 and 051. The primary criteria include cl.050.211 and cl.051.211, which the Tribunal considers below.

   First application, decision and application for review

3. The applicant applied for the visa on 15 August 2018. The decision to refuse to grant the visa was made on 4 September 2018 on the basis that the applicant did not satisfy either cl.050.211 or cl.051.211. The applicant lodged an application for review of that decision on 25 September 2018, with [Mr A] of [Law Firm 1] acting as his migration agent.

   Second application, decision and application for review

4. The applicant applied for the visa again on 4 August 2020. The decision to refuse to grant the visa was made on 17 August 2020, on identical grounds to the first visa refusal decision. The applicant lodged an application for review of the second decision on 25 August 2020, with [Mr B] of [Law Firm 2] acting as his migration agent.

   Combining the first and second applications

5. The Tribunal wrote two letters to the applicant, via [Mr A] and [Mr B], on 16 December 2020 and 15 December 2010 respectively. The letters alerted him that the Tribunal member has before him two applications for review of decisions not to grant him Bridging E visas, with separate migration agents. The letters suggested the applicant review his representation and advise if he wished to make any changes. They also alerted him that the Tribunal may combine the review of two or more Part 5-reviewable decisions made in respect of one person.

6. The letter sent to [Mr A] was returned to the Tribunal as undeliverable. On 17 December 2020, a Tribunal officer contacted [Mr B]. He advised that he would consult with the applicant. The Tribunal received no further advice.

7. In the circumstances, the Tribunal invited the applicant to two hearings, set for 10:00am and 10:30am on 8 January 2021. The Tribunal sent the hearing invitation in relation to the first application both to [Mr A] and to the applicant directly. The letter to [Mr A] was again returned to the Tribunal as undeliverable. The Tribunal received no acknowledgement of or reply to the invitation sent to the applicant. In relation to the second application, [Mr B] sent a reply confirming the applicant’s attendance.

8. The applicant appeared before the Tribunal on 8 January 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The hearing was held via teleconference. [Mr B] was present at the hearing.

9. The applicant and [Mr B] agreed to the Tribunal’s proposal to combine the hearings for both the first and second applications for review.

10. Section 363(2) of the Migration Act provides that ‘the Tribunal may combine the reviews of 2 or more Part 5-reviewable decisions made in respect of the same person’. As discussed at hearing, the Tribunal considers it appropriate in the present circumstances to combine the first and second applications for review, and produce a single decision record. It takes into account: (a) the same facts and law apply in respect of both visa applications; (b) the decision records are identical (except for the dates and the names of the delegates); and (c) the applicant is not represented in relation to the first application for review, and appears to have a limited understanding of the issues at hand. The applicant and [Mr B] agreed to this course of action. [Mr B] added the caveat that he was not representing the applicant in relation to the first matter and had not sighted any of the documents. His oral submissions therefore related only to the second application.

11. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant is a Bangladesh citizen who arrived in Australia by boat in 2013, without permission (unauthorised maritime arrival). He applied for a protection visa, which the Department refused. He sought merits review at the Tribunal, which affirmed the decision to refuse to grant the visa. He then sought judicial review of the Tribunal’s decision. In June 2018, the High Court finally determined his matter.

13. Subclass 051 visas are for people refused immigration clearance of who have bypassed immigration clearance (such as unauthorised boat arrivals) and who have applied for a protection visa.

14. In the decisions under review, the delegates first assessed the applicant’s eligibility for a subclass 050 visa, and then dealt briefly with subclass 051. As [Mr B] noted at hearing, subclass 051 is most relevant to the applicant’s circumstances. The Tribunal therefore assesses this first.

    Subclass 051: Bridging (Protection visa applicant) visa

15. The main issue is whether the applicant satisfies cl.051.211 at the time of application.[1] This requires that an applicant is an eligible non-citizen referred in regs 2.20(7), (8), (9), (10) or (11).

    [1] That is, on 15 August 2018 in relation to the first application, and 4 August 2020 in relation to the second application.

16. Regs 2.20(7), (8), (9) and (10): These sub-regulations apply to a non-citizen who was refused immigration clearance or bypassed immigration clearance.[2] The applicant entered Australia as an unauthorised boat arrival, and therefore meets this requirement.

    [2] Regs. 2.20(7)(a), (8)(a), (9)(a) and 10(a) refer to a non-citizen who was refused immigration clearance, or who bypassed immigration clearance and came to the notice of immigration as an unlawful non-citizen within 45 days of entering Australia.

17. These sub-regulations also require that the non-citizen has 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.[3]

    [3] Regs. 2.20(7(b), (8)(b), (9)(b) or (10)(b).

18. In the present case, the applicant’s application for judicial review of the Tribunal’s decision to affirm the protection visa refusal was finally determined by the High Court [in] June 2018.

19. At hearing, the applicant appeared to have a limited understanding of the processes and timing. He confirmed receiving negative decisions from the Department and the Tribunal, and that he applied for review of these. He recalled a judge saying he was ‘eligible’ for a visa, but then went on to say that he received another negative decision and had to make another application. In an apparent reference to the High Court’s decision in June 2018, and its consequences, he said that he held a visa and work rights until 2018, but then lost these. He then approached a lawyer to help him apply for a bridging visa E.

20. The Tribunal put to the applicant, pursuant to the procedure in s.359AA of the Act, information that the High Court finally determined his application for judicial review on 14 June 2018. He opted to comment/respond to the information orally, on the spot, indicating that he agreed with that information.

21. In brief comments, [Mr B] said that he had advised the applicant that he did not appear to meet the requirement for the grant of a subclass 051 visa.

22. The Tribunal finds that, at the time of the applications, on 15 August 2018 and 4 August 2020, the applicant did not have a protection visa application that was ongoing or subject to judicial review. He therefore does not satisfy r.2.20(7)(b), (8)(b), (9)(b) or 10(b). He is therefore not an eligible non-citizen referred to in these sub-regulations.

23. Reg. 2.20(11): This sub-regulation applies to a non-citizen who is a member of a family unit of a non-citizen to whom sub-regulation (10) applies. In other words, it requires that the applicant is a member of the family unit of another non-citizen who is eligible for a subclass 051 visa as the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen. The applicant told the Tribunal that he has no family in Australia. The Tribunal finds that he does not meet r.2.20(11).

24. The Tribunal finds that, as the applicant is not an eligible non-citizen referred to in r.2.20(7), (8), (9), (10) or (11), he does not meet cl.051.211 at the time of application (in both 2018 and 2020).

    Subclass 050

25. The Tribunal now considers whether the applicant satisfies cl.050.211, which requires that an applicant must be a non-citizen with a certain immigration status.

26. 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). 

27. In the present case, the applicant was an unlawful non-citizen on both relevant dates (14 August 2018 and 4 August 2020), when he applied for the Bridging E visa. He therefore satisfies cl.050.211(1).

28. In relation to cl.050.211(2), r.2.20(17) is potentially relevant to the applicant’s circumstances. It 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.

29. At hearing, the applicant confirmed that he did not hold a visa at the time of his bridging visa applications on 15 August 2018 and 4 August 2020.

    §  As noted above, he was an unlawful non-citizen at the time of application, as required by r.2.20(17)(a).

    §  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 the applications, s.195A is not available to the Minister in relation to the grant of a visa: r.2.20(17)(b).

    §  At hearing, the applicant said that following the decision in 2018 (the Tribunal understands this to be a reference to the High Court’s final determination of his case), the Department said he should return to Bangladesh; however, he did not have a passport at the time. More recently, he had been unable to return due to the COVID-19 pandemic. 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 applications in 2018 and 2020): r.2.20(17)(c).

30. 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).

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

32. At hearing, the applicant said that the past year has been stressful, and he has been trying his best to get by. His father’s illness has added to his stress. He said that he has found the situation in Australia stressful, and he needs permission to work. The Tribunal advised that these factors did not affect his eligibility for this visa, but it undertook to record his concerns in the decision record.

    Conclusion

33. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 051 (Bridging (General)) visa or a Subclass 050 (Bridging (Protection Visa Applicant)) visa.

    DECISION

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

    James Silva
    Member