1921368 (Migration)

[2021] AATA 300

1921368 (Migration) [2021] AATA 300 (4 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1921368

MEMBER:Steven Griffiths

DATE:4 January 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 4 January 2021 at 9.15am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful non-citizen – applicability of an exclusion category – an eligible non-citizen of the kind set out in r.2.20(17) – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), 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 14 June 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 23 July 2019 on the basis that that the applicant did not meet the provisions of cl.050.211(2).

4. The applicant appeared before the Tribunal on 23 December 2020 to give evidence, respond to questions and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

5. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by Microsoft Teams video. No concerns were raised by the parties on holding a Microsoft Teams video hearing and the Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant satisfies cl.050.211, which requires that an applicant must be a non-citizen with a certain immigration status.

8. 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). 

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

10. The Tribunal accepts the documented and oral evidence of the applicant that he was an unlawful non-citizen on 14 June 2019 when he applied for the Bridging E visa. He therefore satisfies cl.050.211(1).

11. In relation to cl.050.211(2), r.2.20(17) is relevant to the applicant’s circumstances. This sub-regulation reads:

    (17)  This sub-regulation 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.

12. The Tribunal notes the applicant filed no evidence and made no submission in support of his application to the Tribunal. Accordingly the material available prior to the hearing comprised, relevantly, the applicant’s completed application form seeking a Bridging Visa E dated 14 June 2019 and the decision of the delegate refusing the application, dated 23 July 2019.

13. In the application, the applicant stated that the reason for applying for the bridging visa was “ministerial intervention”, with no further details provided. No evidence of an application for Ministerial Intervention was found on the Department file.

14. The Tribunal accept the oral evidence of the applicant that he did not hold a visa at the time of application, and still does not have one.

15. The Tribunal accepts the oral evidence of the applicant that he was in a detention centre for approximately 1 month from his arrival in Australia in March 2013.  

16. The applicant notes the oral evidence of the applicant that he has been in Australia since 2013, respects the safety living in Australia provides to him and is desperate to receive permission to stay.

17. The Tribunal notes the oral evidence of the applicant that the reason for his need to leave Bangladesh in 2012 was due to his religious beliefs and the thoughts by others of his political position.  

18. The Tribunal notes that no statement or submission was provided by family members of the applicant continuing to live in Bangladesh in support of the oral evidence of the applicant.

19. The Tribunal accepts the documented evidence located as part of a review by the Tribunal of a previous visa application by the applicant, and courts applications for review and the decisions, making the applicant aware that this information had been reviewed by the Tribunal prior to the hearing.

20. The Tribunal notes the documented and oral evidence of the applicant that he had previously applied for a Protection Visa in July 2013, on the basis of his religious beliefs and the thoughts by others of his political position and that the former husband of his sisters had threatened him about a dowry and custody of the children, with the application refused on 20 November 2014.

21. The Tribunal notes the documented and oral evidence of the applicant that he applied for a review of the refusal decision on 10 November 2014, with the decision affirmed on 12 May 2016.

22. The Tribunal notes the documented and oral evidence of the applicant that he applied to the Federal Circuit Court of Australia for review of the decision [in] May 2016, with the application dismissed [in] August 2018.

23. The Tribunal notes the documented and oral evidence of the applicant that he applied to the Federal Court of Australia for review of the decision, where the appeal was found [in] February 2019 to have failed.

24. Having regard to the applicant’s evidence that he has no proceedings seeking protection or seeking to review his application for protection, the applicant cannot satisfy r.2.20(7)-(11) inclusive, in particular subparagraphs (b)(i) and (ii) in each subregulation.

25. The Tribunal finds that the applicant is a person to whom r.2.20(17) applied at the time of application, for the following reasons:

    §  As noted, he was an unlawful non-citizen at the time of application: r.2.20(17)(a).

    §  Section 195A(1) states that ‘this section applies to a person who is in detention under section 189. As the applicant was not in detention at the time of application, s.195A is not available to the Minister in relation to the grant of a visa: r.2.20(17)(b).

    §  The Tribunal is satisfied on the available evidence that, despite the applicant’s status as an unlawful non-citizen, his removal had not been reasonably practicable (at the time of application): r.2.20(17)(c).

26. As the applicant is an eligible non-citizen of the kind set out in r.2.20(17), he does not satisfy cl.050.211(2).

27. Therefore, the applicant does not meet cl.050.211.

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 applicant 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.

    Steven Griffiths
    Member