1836331 (Migration)

[2021] AATA 794

1836331 (Migration) [2021] AATA 794 (21 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1836331

MEMBER:Andrew George

DATE:21 January 2021

PLACE OF DECISION:  Darwin

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

Statement made on 21 January 2021 at 11:12am

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful Non-Citizen – applicant failed to comply with the practice directions – applicant was not an eligible non-citizen of the kind set out in r.2.20 – decision under review affirmed

LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, 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 3 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 1994 (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 4 December 2018. The delegate wrote to the applicant that “…at the time you made your application you were an unlawful non-citizen”. The applicant appeared by video-link before the Tribunal on 21 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.

4. The applicant was represented in relation to the review by his registered migration [agent]. The Tribunal notes that the applicant failed to comply with the practice directions and did not provide a witness statement or an outline of evidence prior to the hearing in compliance with paragraphs [6.7] and [6.8] of the practice directions. In noting the applicant’s failure to comply with the practice directions, the Tribunal accepts [the migration agent]’s explanation for this and makes no criticism of [the migration agent]. The applicant did not rely on any documentary evidence in support of his application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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). 

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

8. The applicant’s evidence is that left Bangladesh as he had to flee and that it was his view that he was unable to return to Bangladesh as the situation was not favourable. It is unclear to the Tribunal exactly what the applicant was fleeing and why the situation is not favourable, except to note that politics seem to be involved. The applicant stated that he suffered medical problems and did not have access to Medicare. This lack of access to Medicare was of importance to the applicant and, upon a request to the Tribunal for a Medicare card, the Tribunal explained that it did not have the power to grant that request. To his credit, the applicant admitted that he knew that he was an unlawful non-citizen at the time of application.

9. Accepting the applicant’s oral evidence, and noting the absence of any evidence that the applicant was the holder of a Bridging E (Class WE) visa or a Subclass 041 (Bridging (Non-applicant) visa, the Tribunal concludes that the applicant does not meet cl.050.211(1).

10. The Tribunal has turned its consideration to whether the applicant was an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17). There is no evidence before the Tribunal to support a finding that the applicant was an eligible non-citizen under any of those regulations. Accordingly, the applicant does not meet cl.050.211(2) and therefore does not meet cl.050.211.

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

12. 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

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

    Andrew George
    Member