1930496 (Migration)

[2021] AATA 1256

1930496 (Migration) [2021] AATA 1256 (15 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1930496

MEMBER:James Silva

DATE:15 April 2021

PLACE OF DECISION:  Sydney

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

Statement made on 15 April 2021 at 3:45pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclasses 050 and 051 (Bridging (General)) –– application for protection finally determined – at time of application, applicant not in immigration detention and removal not reasonably practicable – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 359A
Migration Regulations 1994 (Cth), r 2.20(17), Schedule 2, cls 050.211, 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 10 October 2019. At that time Class WE contained two subclasses: Subclasses 050 and 051. Relevantly to this matter, the primary criteria include cl.050.211 and cl.051.211.

3. The decision to refuse to grant the visa was made on 22 October 2019 on the basis that the applicant did not satisfy either cl.050.211 or cl.051.211.

4. The applicant attended a Tribunal hearing on 15 April 2021 to give evidence and present arguments. The Tribunal hearing was conducted via telephone, with the assistance of an interpreter in the Bengali and English languages. Immediately prior to the hearing, the applicant attended an interview to provide comments/responses to information that had been put to him by letter under s.359A of the Act. The applicant is represented by [Mr A] of [law firm]. He did not attend the 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 applicant is a Bangladesh citizen who arrived [in] December 2012, by boat directly to the mainland, without permission.

7. He applied for a protection visa on 19 March 2013. The Departure refused the application. The applicant sought merits review of the decision and on 23 September 2015, the Tribunal affirmed the Department’s decision. The applicant then sought judicial review of the Tribunal’s decision. The Federal Circuit Court and the Federal Court dismissed his applications for judicial review, the latter on [date]. The matter was therefore finally determined on that date.

8. The Tribunal wrote to the applicant under s.359A on 13 April 2021, inviting him to comment or response at interview on 15 April 2021, to information that would form the reason, or part of the reason, for affirming the decision under review. The particulars of the information were: (a) that his last bridging visa expired on 3 November 2015. And he did not hold any visa from that time; (b) that the Federal Court dismissed his application for judicial review on [date]; and (c) that when he made the bridging visa application on 10 October 2019, he did not hold a bridging visa and he was not in immigration detention. The letter explained the relevance of this information, as it suggested that the applicant did not meet the requirements for the grant of a bridging visa (subclass 050 or 051).

9. At interview, the applicant confirmed that he had received the letter and he knew its contents (although he also indicated at interview and hearing that he has only a limited understanding of migration law). At interview, the Tribunal went through the letter with the applicant. He confirmed the accuracy of its contents. His comments and responses mainly referred to the circumstances of his travel to Australia and his strong wish to remain here. The Tribunal explained the scope of the review, namely that it would not address any protection claims that he may have or other matters relating to his stay in Australia. It undertook to record his comments in this decision (see ‘other matters’ at the end of this decision).

   Subclass 050

10. The Tribunal first considers whether the applicant satisfies cl.050.211, which requires that an applicant must be a non-citizen with a certain immigration status.

11. 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). 

12. In the present case, the applicant was an unlawful non-citizen on 10 October 2019, when he applied for the Bridging E visa. He therefore satisfies cl.050.211(1).

13. In relation to cl.050.211(2), r.2.20(17) is potentially 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.

14. 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:

    §  The applicant acknowledged at hearing that he was an unlawful non-citizen at the time of application on 7 June 2019: 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).

    §  Reg. 2.20(17)(c) requires that the Minister is satisfied that the non-citizen’s removal from Australia is not reasonably practicable at the relevant time. In the decision under review, the delegate recorded their satisfaction that the applicant’s removal was not reasonably practicable at the time, without further details. On the limited available information, the Tribunal is satisfied that the applicant’s removal was not reasonably practicable at the time of application: r.2.20(17)(c).

15. 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).

16. Therefore, he does not meet cl.050.211.

    Subclass 051: Bridging (Protection visa applicant) visa

17. Subclass 051 visas are for people refused immigration clearance of who have bypassed immigration clearance (such as unauthorised boat arrivals) and who have applied for a protection visa.

18. The main issue is whether the applicant satisfies cl.051.211 at the time of application. This requires that an applicant is an eligible non-citizen referred in regs 2.20(7), (8), (9), (10) or (11).

19. Regs 2.20(7), (8), (9) and (10): These sub-regulations apply to a non-citizen who was refused immigration clearance or bypassed immigration clearance.[1] The applicant entered Australia as an unauthorised maritime arrival, and therefore meets this requirement.

    [1] Regs. 2.20(7)(a), (8)(a), (9)(a) and 10(a) refer to a non-citizen who was refused immigration clearance, or who bypassed immigration clearance and came to the notice of immigration as an unlawful non-citizen within 45 days of entering Australia.

20. These sub-regulations also require that the non-citizen has 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] As noted in the Tribunal’s s.359A letter, and confirmed at hearing, the applicant’s protection visa application was finally determine on [date], when the Federal Court dismissed his application. He therefore does not meet r.2.20(7), (8)(b), (9)(b) or (10)(b).

    [2] Regs. 2.20(7)(b), (8)(b), (9)(b) or (10)(b).

21. Additionally, these regulations apply to persons with certain attributes - under 18 years old; 75 years or older; with a special need based on health or previous experience of torture or trauma; or being the spouse or de facto partner of an Australian citizen or permanent resident, or an eligible New Zealand citizen.[3] The applicant has not claimed to meet these requirements, and confirmed at hearing that they do not apply to him. It follows that he cannot meet r. 2.20(7)(c), (8)(c), 9(c) or 10(c).

    [3] Regs. 2.20(7)(c), (8)(c), 9(c) and 10(c), respectively.

22. The Tribunal finds that the applicant does not meet r.2.20(7), (8), (9) or (10).

23. Reg. 2.20(11): This sub-regulation applies to a non-citizen who is a member of a family unit of a non-citizen to whom sub-regulation (10) applies, i.e. as is a family member of a non-citizen who meets r.2.20(10), as the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen. The Tribunal finds that he does not meet r.2.20(11).

24. The Tribunal finds that, as the applicant is not an eligible non-citizen referred to in r.2.20(7), (8), (9), (10) or (11), he does not meet cl.051.211.

    Other matters

25. At interview and hearing, the applicant said that he is a normal person who has little education. He said that he experienced problems in Bangladesh, and undertook the dangerous trip to Australia to save his life. He said that he had not asked to be released from immigration detention, and had not realised that his visa had been cancelled. The Tribunal understood these to be in part his comments/responses to potentially adverse information (namely, that he had been an unlawful non-citizen and not in immigration detention at the time of lodging his bridging visa application); and in part a more general indication that he did not have much understanding of migration law.

26. The applicant stressed that he wished to be allowed to stay in Australia, lawfully, to be given permission to work, and to be given a chance to contribute to society. The Tribunal undertook to note these comments, but recommended that the applicant consult with a migration agent, solicitor or Department to discuss his further options.

    Conclusion

27. For the above reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa.

    DECISION

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

    James Silva
    Member