1917666 (Migration)

[2020] AATA 2999

1917666 (Migration) [2020] AATA 2999 (14 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1917666

MEMBER:Brendan Darcy

DATE:14 May 2020

PLACE OF DECISION:  Melbourne        

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

Statement made on 14 May 2020 at 10:12am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful non-citizen – eligible non-citizen refused or bypassed immigration clearance – protection visa application finally determined – no family unit – continued fear of returning to country of nationality – barred from applying for a further protection visa – applicant exhausted visa appeal options – removal from Australia reasonably practicable at the time – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 73, 195
Migration Regulations 1994, Schedule 2, cls 050.211, 050.221, 051.211; r 2.20

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 30 May 2019. 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.050.211.

3. The decision to refuse to grant the visa was made on 24 June 2019 on the basis that the applicant as a unlawful non-citizen in the community and not in immigration detention did not specifically satisfy cl.020.211(2).

4. The applicant appeared before the Tribunal on 13 May 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant was represented in relation to the review by his registered migration agent but did not attend the scheduled hearing.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant satisfies 050.211(1) and 050.211(2) at the time of application.

7. Background

8. The applicant, a citizen of Bangladesh, arrived in Australia as an unauthorised maritime arrival [in] December 2012 and validly applied for an onshore protection visa on 2013. He was granted an associated Bridging E (Class WE) visa on 28 February 2013 while that substantive visa application was decided.

9. As discussed in the hearing, a protection visa was refused by the Department. The applicant was unsuccessful through merits review; and the applicant was consecutively unsuccessful in appealing to the Federal Circuit Court, the Federal Court and the High Court of Australia. The HCA made its unfavourable decision on the applicant’s protection visa application [in] April 2019.

10. The applicant’s last associated bridging visa with his protection visa application and appeals ceased in [July] 2016 and has not held a visa of any category since that date. 

11. On 30 May 2019, the applicant applied for this bridging visa with the Department. On 24 June 2019, a delegate on behalf of the Minister refused to grant the visa.

12. On 2 July 2019, the applicant applied to the Tribunal to have the delegate’s refusal decision reviewed. A copy of the delegate’s decision was attached.

13. The applicant was originally invited on 10 March 2020 to attend a scheduled hearing on 26 March 2020. However, this was cancelled due to the public health emergency surrounding the novel coronavirus (COVID19) pandemic. 

14. At the scheduled hearing, the applicant complained that his representative did not explain to him the reasons as to his visa not being granted by the Department. The Tribunal took some time to carefully explain the reasons outlined in the decision record.

15. At the end of the hearing, no further submissions or documents were required.

    Immigration status of the applicant - cl.050.211

16. 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). 

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

18. Subclasses 050.211(1) states that:

    (1)The applicant is:

    (a)                an unlawful non-citizen; or

    (b)                 the holder of a Bridging E (Class WE); or

    (c)                  the holder of a Subclass 041 (Bridging (non-applicant) visa.

19. As discussed in the hearing, at the time of application the applicant had not been holding a bridging visa and was an unlawful non-citizen who had not held a bridging or any other visa for some time.

20. In this regard, the applicant satisfied subclause 050.211(1)(a) and was not required to satisfy subclauses 050.211(1)(b) and (c).

21. Accordingly, the applicant satisfied 050.211(1).

22. Clause 050.211(2) of Schedule 2 to the Regulations requires that the applicant was not an eligible non-citizen of the kind set out in regulation 2.20(7), (8), (9), (10), (11) or (17) which defines that:

    The applicant must have been refused or bypassed immigration clearance[1] and must have 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.[2] The applicant must also:

    -be under 18 years old and certain child welfare authorities certified that release from detention is in the applicant’s best interests and the Minister is satisfied that arrangements are made for his or her care and welfare;[3] or

    -have turned 75, and the Minister is satisfied of adequate arrangements for community support of the applicant;[4] or

    -have a special need (based on health or previous experience of torture or trauma) that cannot properly be cared for in detention and the Minister is satisfied of adequate arrangements for community support of the applicant;[5] or

    -be the spouse or de facto partner of an Australian citizen, permanent resident or eligible New Zealand citizen; and the Minister is satisfied that the relationship is genuine and continuing; and the applicant is nominated by that person.[6] Members of the family unit of such a person will also meet this criterion,[7] or

    -be a the non-citizen who is an unlawful non-citizen; and 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.

    [1] Regulation 2.20(7)(a), (8)(a), (9)(a) and (10)(a). A person to whom r.2.20(11) applies does not have to have been refused or bypassed immigration clearance, but must be a member of the family unit of a person who has.

    [2] Regulation 2.20(7)(b),(8)(b),(9)(b) and (10)(b).

    [3] Regulation 2.20(7)(c)-(e).

    [4] Regulation 2.20(8)(c) and (d).

    [5] Regulation 2.20(9)(c) and (d).

    [6] Regulation 2.20(10)(c)-(e).

    [7] Regulation 2.20(11).

23. Regulation 2.20(7), (8), (9), (10) and (11) all require the applicant to be a person who has been refused or bypassed immigration clearance[8] and must have 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.[9]

    [8] Regulation 2.20(7)(a), (8)(a), (9)(a) and (10)(a). A person to whom r.2.20(11) applies does not have to have been refused or bypassed immigration clearance, but must be a member of the family unit of a person who has.

    [9] Regulation 2.20(7)(b), (8)(b), (9)(b) and (10)(b).

24. On his evidence he is a person who in 2012, bypassed immigration clearance and was detained by the Department. The applicant then applied for a protection visa which was finally determined, prior to the time of application for the Bridging E visa. There is no evidence that, at the time of application, the applicant had a protection visa application not determined or had any ongoing judicial reviews in connection with the applicant or the Minister for Home Affairs. There is no suggestion in the applicant has a partner and family members in Australia.

25. On the evidence, at the time of application, the applicant was not a member of the family unit of a relevant person. Therefore the applicant is not an eligible non-citizen as set out in r.2.20(7), (8), (9), (10) or (11) of the Act and did not satisfy 050.211(2) in this regard.

26. As noted in the hearing, the delegate outlined his or her determinative finding that the applicant was not an eligible non-citizen of the kind set out in subregulation 2.20(17). The subregulation states:

    (17)  This subregulation 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.

27. While the applicant was an unlawful non-citizen at the time of application and the time of this decision, he was in the community and not in immigration detention. Regulation 2.20(17)(b) is only available to the applicant if the was currently in immigration detention under s.195A of the Act (as well as there being a determination or direction that the applicant’s removal is not reasonably practicable at the time under r.2.20(17)(c)).

28. The Tribunal explained to the applicant that given he is unlawfully in the community as a non-citizen, that it was unlikely the Tribunal would reach a decision that he satisfied 050.211(2) based on the undisputed evidence before it. Having said this, the Tribunal provided the applicant an opportunity to provide reasons to make a favourable decision.

29. The applicant outlined to the Tribunal that his conditions are poor and that he has no work rights or public health cover. The applicant said he continues to fear returning to his country of nationality and reference. He stated he relies on charitable organisations for subsistence and was distressed. With no evidence to the contrary, the Tribunal accepts this to be case.

30. The applicant expressed his wish that the Tribunal would assist him. In response, the Tribunal outlined to the applicant here are no laws or regulation whereby the Tribunal can waive the effect of this subclause and regulation on compelling and/or compassionate grounds and the Tribunal was therefore not a position to review his protection visa application a second time.

31. The Tribunal acknowledged that the applicant’s migration options appear to be considerably narrowed given he had unsuccessfully appealed a delegate’s refusal decision regarding his protection visa application to the highest court with Australia’s legal jurisdiction and he was barred from applying for a protection visa once without Ministerial intervention. 

32. The Tribunal further responded by stating that it cannot provide migration advice or assistance but was able to recommend to him to seek out a registered migration agent or lawyer about his migration options, which he had not appeared to have undertaken meaningfully.

33. The applicant also claimed not to be prepared for the hearing, either legally or emotionally. This is not accepted by the Tribunal as the applicant has had ample time to prepare for this review since it was lodged in July 2019.  Furthermore, the applicant had engaged a migration agent and that had been earlier invited to a scheduled hearing in March 2020 which had been cancelled indicating a hearing was looming.

34. Regulation.2.20(17) is intended to create the inclusion of a limited class of persons in the definition of eligible non-citizen for bridging visas, for example, unlawful non-citizens in immigration detention and whose home country is in such severe turmoil from a natural disaster or civil disturbance that a delegate on behalf of the Minister is satisfied that the removal of such persons from Australia is not reasonably practicable at the time. The requirement, in turn of cl.050.211(2) is that the applicant not be such a person at the time of the application for a bridging visa.

35. Based on the evidence before it, the applicant is not an eligible non-citizen of the kind set out in subregulations 2.20(7)-(11) or (17).

36. Accordingly, the Tribunal is not satisfied that the applicant meets the requirements in subclause 050.211(2) either at the time of application or at the time of decision.

37. Therefore, the applicant does not meet either cl.050.211.

38. Furthermore, as the applicant is not an eligible non-citizen of the kind set out in r.2.20(7)-(11) based on the findings above, neither is the applicant eligible for a Subclass 051 Bridging E visa.

    Conclusion

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

40. 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

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

    Brendan Darcy
    Member