1835822 (Migration)

[2018] AATA 5751

1835822 (Migration) [2018] AATA 5751 (14 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1835822

MEMBER:Mark O'Loughlin

DATE:14 December 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 14 December 2018 at 10:33am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 – no application for substantive visa – no intention to apply for substantive visa – decision under review affirmed

LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 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

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 3 December 2018. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, to succeed the applicant needs 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). The decision to refuse to grant the visa was made on 5 December 2018 on the basis that the applicant did not meet cl.050.212

3. The applicant appeared before the Tribunal on 13 December 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. In his application the applicant submitted that he wants to complete his study in Australia and that his future in India will be prejudiced if he does not.

6. He also submitted that he was at risk of attack at the hands of his ex-girlfriend’s family.

7. He further submitted that he needed a visa to be able to complete a community service order that had been proposed in relation to some criminal charges against him.

8. The applicant repeated the claims in relation to his future in India and the risks of returning in his evidence before the Tribunal.

9. In relation to the criminal matters he provided the Tribunal with evidence of a bond into which he had entered that he acknowledged completed those matters without there being any order made for community service.

10. He also gave evidence that he was not really guilty of the charges and had been unfairly blamed for actions that were not within his own control.

11. The applicant gave evidence that he suffers psychologically from being in detention and suggested that this may have affected his ability to represent himself before the Tribunal although he was not able to explain how. There was no incapacity evident in the applicant’s presentation before the tribunal.

12. He acknowledged that he is not making arrangements to leave Australia nor is he subject to any arrangements to leave.  The Tribunal accepts his evidence about this.

13. He said that he had no current requests or applications in respect of visas other than the subject application for a Bridging Visa E.  The Tribunal accepts his evidence about this.

    The grounds for seeking the visa - cl.050.212

14. 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.

15. In this case, in his application the applicant did not evidently seek to meet any of the criteria in cl.050.212.

16. At the hearing the applicant made certain assertions that the Tribunal has considered.

    Substantive visa application

17. 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.

18. A valid application for a student visa would usually satisfy this subclause.

19. At the hearing the applicant said that he intends to apply for a student visa although he was unable to say when he would do so or whether he expected to be prevented from doing so by a statutory bar.

20. Despite his current stated intention, the Tribunal notes that in this application for a Bridging Visa E he stated that he did not intend to apply for a substantive visa.

21. The Tribunal is not satisfied that at the time of this application for a Bridging Visa E the applicant intended to make any further visa application.

22. The Tribunal finds that the applicant did not therefore satisfy the subclause at the time of application and cannot rely on ground 050.212(3) in this application.

23. 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.

24. On 26 November 2018 the Tribunal affirmed a decision to refuse the applicant a protection visa.

25. At the hearing the applicant said that he intended to seek judicial review of that refusal.

26. Subclause 050.212(3A) is not met as it only contemplates applications for judicial review that have already been made.  Prospective applications do not fall within the subclause.

27. The Tribunal has considered whether the applicant meets and of the other alternative subclauses in cl.050.212.  The applicant has not claimed to meet, nor is there any evidence before the Tribunal to suggest he meets, subclause (2), (4), (4AAA), (4AA), (4AB), (5), (5A), (5A), (5B), (6), (6AA), (6A), (6B), (7), (8), or (9).  The Tribunal finds that the applicant does not meet cl.050.212..

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

29. 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

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

    Mark O'Loughlin
    Member