1910054 (Migration)

[2021] AATA 3275

1910054 (Migration) [2021] AATA 3275 (20 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1910054

MEMBER:Nathan Goetz

DATE:20 July 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Bridging E (Class WE) visas.

Statement made on 20 July 2021 at 2:59pm

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicants are considered ‘eligible non-citizens’ – ongoing judicial review – applicants applied for the bridging visas while they held existing bridging visas –decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 73, 195A, 189
Migration Regulations 1994, Schedule 2, r 2.20, 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 decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Bridging E (Class WE) visas under s 73 of the Migration Act 1958 (Cth) (the Act).

2. The applicants were represented in the review application by registered migration agent 9802451 Mr Raveendran Selvadyrai.

   IDENTITY, MIGRATION HISTORY AND CHRONOLOGY

3. The applicants identify as citizens of Sri Lanka and arrived in Australia on [date] August 2012 by boat without a visa. They are presently aged [age] and [age] years of age.

4. On 23 October 2012 the applicants were granted bridging visas. On 21 November 2012 the applicants applied for protection visas.  

5. On 4 December 2012 the bridging visas granted on 23 October 2012 ceased. On 19 February 2013 the applicants were granted bridging visas.

6. On 25 June 2015 a delegate refused to grant the protection visas. The applicants applied to the Tribunal for review of the refusal decisions. On 14 February 2019 the Tribunal affirmed the refusal decisions. [In] March 2019 the applicants applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.

7. On 14 March 2019 the applicants applied for the bridging visas which are the subject of this decision record. At that time Class WE contained two subclasses: Subclasses 050 and 051.

8. On 15 March 2019 the bridging visas granted on 19 February 2013 ceased.

9. On 3 April 2019 the delegate refused to grant the bridging visas on the basis that the applicants did not met cl.050.211(2) or cl.051.211.

10. On 23 April 2019 the applicants applied to the Tribunal for review of the decision to refuse to grant the applicants the bridging visas.

11. On 1 July 2021 the applicants were invited to appear at Tribunal hearing at 10:00am on 20 July 2021. The Tribunal determined that a telephone hearing was appropriate because the Member was in Sydney and the applicant resided in metropolitan Melbourne. The applicants were invited to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. This was because the Tribunal considered the information it had and was unable to make a decision favourable to the applicants.

12. On 20 July 2021 the applicants appeared at the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the English and the Tamil (Sri Lankan) languages. The migration agent also attended the Tribunal hearing by telephone.

    CRITERIA FOR THE VISA

13. Subclause 050.211(2) is required to be satisfied at the time the applicants applied for the bridging visa. The applicants must also continue to satisfy this at the time of decision. The clause states that:

    The applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17).

14. Subregulation 2.20(17) defines an ‘eligible non-citizen’ as a non-citizen who is an unlawful non-citizen, to whom s.195A of the Act is not available to the Minister in relation to the grant of a visa to the applicant, and to whom the Minister is satisfied that the non-citizen's removal from Australia is not reasonably practicable at that time.

15. Relevant to the definition of an eligible non-citizen as provided in subregulation 2.20(17), s.195A of the Act applies to a person who is in detention under s.189 of the Act.

16. Subclause 051.211 is required to be satisfied at the time the applicants applied for the bridging visa. The applicants must continue to satisfy this at the time of decision. The clause states that:

    The applicant is an eligible non-citizen referred to in sub regulation 2.20(7), (8), (9), (10) or (11).

17. Subregulations 2.20(7), (8), (9), (10) or (11) provide:

18. In relation to 2.20(7), it is required that the applicants have not turned 18 years of age. In relation to 2.20(8), it is required that the applicants have turned 75 years of age. In relation to 2.20(9) and (10), it is required that it is the Minister who has applied for judicial review of the decision concerning the applicants’ protection visa applications or substantive visa applications respectively. In relation to 2.20(11), it is required that the applicants be members of the same family unit to whom 2.20(10) applies.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Bridging visa application form

19. According to the bridging visa application form, the applicants seek the bridging visa on the basis of ‘judicial review.’ They indicate that judicial review proceedings have commenced and not been completed or withdrawn. The form asks for additional information about this and the applicants wrote:

    ‘My wife [and] I have applied for judicial review of by Administrative Appeals Tribunal dated 14 February 2019 not to grant protection visas.

    The judicial review details are:

    File Number [deleted]

    File Title: [deleted]

    Registry: Melbourne Registry Federal Circuit Court

    We are irregular maritime arrivals and were in immigration detention from the date of our arrival on [date] August 2012. During this detention, the Minister exercised his power to release us into the community detention to follow our claims for refugee status.’

20. The applicant attached a copy of the notice of filing and hearing which was dated 6 March 2019.

21. The Tribunal is aware that the judicial review matter remains ongoing, with a first directions hearing held on 28 April 2021 and a hearing date to be advised.

    Written submission to Tribunal and discussion at Tribunal hearing

22. Prior to the Tribunal hearing, the Tribunal wrote to the applicants and asked how they met cl.050.211(2) and cl.051.211. The response was provided through the migration agent and is summarised as follows:

23. The applicants’ migration history was detailed in the submission. The applicants applied for judicial review of the protection visa refusal decision on 6 March 2019.

24. It was submitted that the department calculated the 28-day period to be from the date of the decision by the AAT, which was on 14 February 2019 rather than the day the decision was notified, which was 15 February 2019.

25. At the Tribunal hearing, the Tribunal asked how this was relevant to whether the applicant met cl.050.211(2) and cl.051.211.

26. The migration agent’s response was convoluted and repeated that the applicants were required to apply for a review of the Tribunal decision within 28 days, they were irregular maritime arrivals and had been placed into detention but were released into the community on a bridging visa and were allowed to apply for a protection visa within 28 days. The Tribunal pointed out that there was no issue about whether the applicants had ongoing judicial review proceedings in the Federal Circuit Court and this was not the basis that the applicants had been refused the bridging visa

27. The submission went on to detail that the applicants attended the compliance section for an interview regarding the bridging visa application but were sent home stating that they would be called for an appointment. This was not done, and the bridging visa was refused without ascertaining the facts.

28. At the Tribunal hearing, the Tribunal asked how this was relevant to whether the applicant met cl.050.211(2) and cl.051.211.

29. The migration agent’s response was convoluted and spoke of the practices at the time of granting the bridging visas. It was suggested to the Tribunal that if the applicants had been interviewed by the department then some of the issues could have been addressed, including that they complied with the requirements of their bridging visas and had been released into the community previously. The migration agent then said that when the applicants went to the department they were told that they had not submitted their application on time. The Tribunal noted to the migration agent that there was no suggestion that the applicants were refused a bridging visa on the basis of not lodging it within a prescribed timeframe. The migration agent said that this was not stated in the delegate decision but he thought that this may have been a factor. The migration agent then spoke of having to follow a practice of interviewing people and queried the practice not being followed in this case.

30. The submission continued that the applicants applied to the Tribunal out of anxiety. They were advised to submit a further application for a bridging visa application. A copy of an email was provided.

31. The submission then claimed that the applicants meet the criteria for the bridging visa because the applicants have made a judicial review application concerning the protection visas. Therefore, they satisfied Regulation 2.20(7)(b)(ii).

32. The Tribunal was perplexed by this, because cl.050.211(2) requires that the applicant not be an eligible non-citizen to meet the criteria. It appeared that the applicants were making a concession that they did not meet cl.050.211(2) because they were eligible non-citizens as provided in that clause. At the Tribunal hearing, the Tribunal asked if this was the case.

33. The migration agent’s response changed throughout the discussion at the Tribunal hearing. Initially it was yes, but it appeared that the migration agent may have been suggesting that the applicants could be granted a bridging visa because they had grounds for doing so, being ongoing judicial review. The grounds for seeking the visa was a separate question and the delegate did not refuse to grant the bridging visa on the basis that the applicants did not satisfy cl.050.212.

34. Later, when the Tribunal pointed out that if the applicants did in fact meet Regulation 2.20(7) as the migration agent appeared so suggest, then the applicants would fail to meet cl.050.211(2) because they were not an eligible non-citizen as provided by Regulation 2.20(7), the response appeared to have change to suggest that they were not captured by that definition. The Tribunal then noted that Regulation 2.20(7) required that the applicants be under 18 years of age, noting that ‘and’ is included between the paragraphs of that Regulation. The migration agent disputed that the Regulations are to be read that way.

35. There was then a discussion about whether the applicants were captured by Regulation 2.20(17). The Tribunal noted that there was no submission about this in the written submission, which the Tribunal found odd because it was on the basis that the applicants met Regulation 2.20(7) that the delegate concluded that they did not satisfy cl.050.211(2). The migration agent appeared to suggest that they would not be captured by the definition of an eligible non-citizen because 050.211(2) did not read ‘unlawful’ before ‘eligible non-citizen’ or that they would not be captured by that clause because the Minister had already exercised the power under s.195A of the Act in respect of the applicants by releasing them from immigration detention into the community.

36. The submission continued that the AAT decision was made on 14 February 2019 but the applicants were notified on 15 February 2019. The bridging visa applications were made on 14 March 2019. The applicants lodged their bridging visa application within 28 days of being notified of the AAT decision to affirm the protection visa refusal decision. This meant, according to the migration agent, the refusal is ‘not reliable’, as there is ‘no breach’ and the ‘use of cl.051.211 is unnecessary in the matter of the applicants.’

37. The submission then claimed that on 8 April 2019 the applicants lodged another bridging visa application, but they received notification that this was refused on 17 April 2019. Due to anxiety, they applied for another bridging visa on 20 February 2020. The refusal notification was received on 3 April 2020 and another notification of refusal was sent on 25 May 2020. It was stated that the applicants did not meet the requirements of the bridging visa, but this was incorrect as the applicants had applied for judicial review of the decision to refuse the protection visas. This suggested to the Tribunal that there was a basic misunderstanding of the issue that was being considered by the Tribunal.

38. The submission went on to write that the decision of a refugee claim includes balancing competing interests. The decision-maker and the asylum seekers both should follow procedural fairness in all layers of the process. From submitting an application to a final decision, a decision-maker has to navigate the concept of natural justice, for the decision to be upheld as fair, in the interlocutory process. It was claimed in the case of the applicants they were affected by an absence of a reasonable opportunity for their application to be considered with an interview, as it existed at that time. It was also claimed that they were not provided with proper instructions when they visited the department. It was claimed that this was an unfair act by an administrative body which resulted in the applicants being denied the bridging visa, and they are still affected by the decision without a relief. This is inferring the application is held to be out of time.

39. The Tribunal queried how this was relevant to the question about whether the applicants satisfy cl.050.211(2) or cl.051.211. After some discussion, it was put to the Tribunal that administrative decision-making needed to be fair.

40. The submission went on to read that the department has the primary responsibility and duty to provide accurate information or instruct the applicants correctly and to avoid unnecessary delay. It was claimed that the department failed to act fairly. The department informed the applicants that they would be contacted which did not happen. The period in which the applicants were waiting for the process was the time where changes were being taken place in the procedural mechanism. It gave the applicants added confusion. During this period of time, the procedure and practices were undergoing changes, particularly at the compliance section, which these applicants were required to interact. The Tribunal understands from what was said at the Tribunal hearing that there is a belief that if the applicants had been interviewed, they would have been granted a bridging visa. That is not relevant as to whether the applicants satisfy cl.050.211(2) or cl.051.211.

41. The submission went on to read that if an application is lodged online, the applicants were requested to attend a face-to-face interview for the grant. Sometimes, the applicants attend the compliance with evidence of lodgement of the review to court and was given an application for a bridging visa to be completed and then interviewed about the grant.

    FINDINGS AND REASONS

42. The applicants applied for the bridging visas while they held existing bridging visas. The existing visas expired the day after they applied for the bridging visas the subject of this decision. To that extend, the delegate’s reference to the applicants’ being unlawful non-citizens at the time of applying for the bridging visas which are the subject of this proceeding is wrong. However, nothing turns on this. The delegate made the refusal decision in relation to cl.050.211(2) and cl.051.211.

43. The issue in this case is whether the applicants meet cl.050.211(2) or cl.051.211. If the answer is yes, then the Tribunal must remit the matter back to the department with a direction that the applicants meet either of those clauses. If the answer is no, then the Tribunal must affirm the delegate decision to refuse the applicants bridging visa.

44. The written submission was entirely unhelpful to both the Tribunal and the applicants. It contained irrelevant submissions about the issue of whether the department had arranged an interview with the applicants, procedural fairness issues relating to their protection visa applications, appeared to make a concession that they were eligible non-citizens per Regulation 2.20(7) which, if were true, meant that could not meet cl.050.211 as this clause requires that they applicants not be such eligible non-citizens, and also did not address Regulation 2.20(17) which was the basis that the applicants were found to not meet cl.050.211(2) in the delegate decision. The Tribunal’s discussion with the migration agent at the Tribunal hearing was also not helpful because the migration agent appeared to not be prepared to discuss the fact in issue, namely the criteria upon which the applicants had been refused the bridging visa.

45. Having considered everything, the Tribunal has concluded that the decisions under review should be affirmed.

    Clause 050.211(2)

46. The applicants are not ‘eligible non-citizens’ of a kind provided by Regulation 2.20(7). That regulation requires them to be under 18 years of age, among other things. The Tribunal does not accept the migration agent’s interpretation of that Regulation. The use of the word ‘and’ clearly means that they applicants are required to be under 18 years of age: Regulation 2.20(7)(c). The Tribunal does not find that the applicants meet that definition. This of course, takes the matter nowhere, because if the Tribunal was to accede to the migration agent’s submission about this issue, then the applicants would fail to meet cl.050.211.

47. Instead, the Tribunal finds that the applicants are ‘eligible non-citizens’ pursuant to Regulation 2.20(17). This is because they are now unlawful non-citizens, and the s.195A power is not available to the Minister because the exercise of this power is applicable only to applicants who are in detention, which the applicants are not. The fact that the Minister previously exercised this power to release the applicants from detention is irrelevant. The submission that because the word ‘unlawful’ is not present before ‘eligible non-citizen’ it does not apply to the applicants is misconceived. So far as relevant to Regulation 2.20(17), it is in the Regulation that the requirement for the applicants to be unlawful is found.

48. Further, as the applicants have an ongoing judicial review proceedings concerning a protection visa application, the Tribunal is satisfied that the removal of the applicant from Australia is not reasonably practicable at this time. The department is prohibited from removing the applicants under s.198(5A) because the judicial review proceedings concerning the protection visa have not been completed.

49. Therefore, the applicants are considered ‘eligible non-citizens’ per Regulation 2.20(17). Accordingly, as cl.050.211(2) is expressed in the negative (that is, that they applicants are not an eligible non-citizen of a kind per Regulation 2.20(17), the applicants do not satisfy cl.050.211(2).

    Clause 051.211

50. Despite the migration agent’s written submission that the use of cl.051.211 is ‘unnecessary,’ the applicants had sought a review of the refusal decision, which included a finding that the applicants failed to meet cl.051.211.

51. As the applicants are aged [age] and [age] years of age presently, it could not be argued that at the time they applied for the bridging visa in 2019 they were under 18 years of age, or had turned 75 years of age. The migration history demonstrates that it is not the Minister who has lodged judicial review proceedings concerning the decision made in respect to the applicants’ protection visa applications, which are substantive visa applications.

1. Therefore, the applicants are not ‘eligible non-citizens’ for the purpose of cl.051.211.

   CONCLUSION

2. For these reasons, the applicants do not meet cl.050.211(2). They therefore fail to satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

3. For these reasons, the applicants do not meet cl.051.211. They therefore fail to satisfy the criteria for the grant of a Subclass 051 (Bridging (Protection Visa Applicant)) visa.

   DECISION

4. The Tribunal affirms the decisions not to grant the applicants Bridging E (Class WE) visas.

   Nathan Goetz
   Member