1835448 (Migration)

[2018] AATA 5114

1835448 (Migration) [2018] AATA 5114 (7 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1835448

MEMBER:Nathan Goetz

DATE:7 December 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 07 December 2018 at 10:15am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 – no substantive visa application – departmental refusal of protection visa – court sentence pending bridging visa outcome – no review application for protection visa refusal – no judicial review application – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 73, 116(1)(b), 137K

Migration Regulations 1994, Schedule 2 cls 050.212(3), 050.212(3A)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501Kof 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 28 November 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 was made on 29 November 2018 on the basis that the applicant did not have any evidence to indicate that he had a substantive visa application that had not yet finally been determined: cl.050.212(3), nor that he had a judicial review application that had not been determined: cl.050.212(3A).

4. On 3 December 2018 the applicant lodged an application for review of this decision with the Tribunal. He provided a copy of the delegate decision with the application form. The applicant appeared before the Tribunal on 7 December 2018 to give evidence and present arguments.

   BACKGROUND

5. The applicant [is] a citizen of India. He arrived in Australia [in] November 2015 as the holder of a [temporary] visa [which] was valid until 30 August 2019. On 24 August 2017 this visa was cancelled under s.116(1)(b) of the Act and he became an unlawful non-citizen.

6. [In] August 2018, the applicant was arrested by [the] Police and charged with [offences]. He was released on bail by the [Local] Court the following day, but was taken into immigration detention upon his release from criminal custody.

7. On 30 August 2018, the applicant lodged a XA866 protection visa application. An associated bridging visa which would have released him from detention was refused by a delegate on 3 September 2018. He applied to the Tribunal for a review of the refusal decision in case 1825711 and on 12 September 2018 the Tribunal affirmed the decision to refuse the bridging visa. The applicant remains in immigration detention.

8. On 4 October 2018, a delegate refused to grant the applicant the protection visa.

9. The applicant told the Tribunal that his next court date is [date] January 2019. He has pleaded guilty in the criminal proceedings and the matter was adjourned for sentencing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant told the Tribunal that he disagreed with the delegate decision refusing to grant him a protection visa. He told the Tribunal that he was planning to file judicial review proceedings in the Federal Court but had not yet done so. He was planning to do so in the new week. He is not receiving any legal assistance in these matters and is doing it himself because he cannot afford the assistance of a lawyer. He is represented by a Legal Aid lawyer for his criminal proceedings, but his Legal Aid lawyer cannot provide him assistance with his migration matter.

11. He told the Tribunal that his attention had been focused on his criminal matters and that is why he had not yet appealed against the protection visa refusal. He told the Tribunal that he needed to be released on a bridging visa because he was likely to receive a sentence by the court that involved parole conditions, such as anger management courses, and that was part of the reason for the adjournment of the criminal proceedings. The Tribunal understands from the applicant that the sentencing magistrate wanted to find out whether the applicant was going to be released from immigration detention before imposing sentence because this may impact the sentencing disposition imposed by the court.

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

    The grounds for seeking the visa - cl.050.212

13. 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. In this case, the applicant is seeking to meet cl.050.212(3) or cl.050.212(3A). The applicant does not claim to meet any of the other alternative criteria in cl.050.212.

14. For the reasons below, the applicant does not meet cl.050.212.

    Substantive visa application

15. 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.

16. ‘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.

17. The applicant’s protection visa was refused on 4 October 2018. He has not sought a review of that decision, either at the time of his bridging visa application, or subsequently. Accordingly, the applicant does not meet cl.050.212(3).

    Judicial review, merits review, s.137K revocation

18. Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.

    As stated above, the applicant’s protection visa was refused on 4 October 2018. He has not sought a review of that decision, either at the time of his bridging visa application, or subsequently. Accordingly, the applicant does not meet cl.050.212(3A).

    CONCLUSION

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

20. 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

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

    Nathan Goetz
    Member