2101292 (Migration)

[2021] AATA 3419

2101292 (Migration) [2021] AATA 3419 (25 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2101292

MEMBER:Nathan Goetz

DATE:25 August 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to refuse to grant the applicant a Bridging E (Class WE) visa

Statement made on 25 August 2021 at 10:13am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – period of unlawful residence – past immigration history – applicant not interviewed – failure to attend Tribunal hearing – applicant intends to lodge a substantive visa application – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 73, 362
Migration Regulations 1994, Schedule 2, cl 050.212, 050.222; r 2.21

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 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 refusing to grant the applicant a Bridging E (Class WE) visa.

   IDENTITY, MIGRATION HISTORY AND CHRONOLOGY

2. The applicant identifies as [an age]-year-old male citizen of Malaysia. He arrived in Australia [in] November 2015 holding an electronic travel authority visa. This visa ceased [in] February 2016.

3. On 25 September 2017 the applicant applied for a protection visa. On 26 September 2017 the applicant was granted a bridging visa.

4. On 21 November 2017 a delegate refused to grant the protection visa. On 26 December 2017 the bridging visa granted on 26 September 2017 ceased.

5. On 27 February 2019 the applicant applied for a protection visa again. On 6 March 2019 a delegate determined that the protection visa application was invalid.

6. On 21 October 2020 the applicant was granted a bridging visa. On 16 December 2020 the bridging visa granted on 21 October 2020 ceased. The applicant became an unlawful non-citizen.

7. On 16 January 2021 the applicant applied for the bridging visa that is the subject of this Decision Record. On 4 February 2021 the delegate refused to grant the bridging visa on the basis that the applicant did not satisfy cl.050.222 of Schedule 2 of the Migration Regulations 1994.

8. On 5 February 2021 the applicant applied to the Tribunal for review of the delegate refusal decision.

9. On 5 August 2021 the Tribunal wrote to the applicant and invited him to appear at a Tribunal hearing on 25 August 2021 commencing at 10:00am AEST to give evidence and present arguments relating to the issues arising in relation to the decision under review.

10. The Tribunal was required to do this because the Tribunal had considered the information it had and was unable to make a decision favourable to the applicant. Given the COVID-19 pandemic, the Tribunal determined that a telephone hearing was appropriate.

11. On 25 August 2021 the Tribunal telephoned the applicant on the telephone number the applicant provided to the Tribunal for correspondence. The call was unsuccessful. The Tribunal called the applicant an additional three times on this number. All calls were unsuccessful. Given that the applicant did not answer the Tribunal’s telephone calls, he failed to appear at the Tribunal hearing.

12. As the applicant failed to appear at the Tribunal hearing, the Tribunal was empowered to make a decision on the review without taking any further steps to allow or enable the applicant to appear at the Tribunal: s.362B(1A)(a).

13. The Tribunal decided that this was appropriate given that the applicant had not responded to several requests from the Tribunal for information as detailed in this decision record.

14. CRITERIA FOR THE VISA

    050.222  

    (1)  Unless subclause (2), (3) or (4) applies, the applicant has been interviewed by an officer who is authorised by the Secretary for the purposes of this clause.

    (2)  This subclause applies if:

    (a)  the applicant is not in immigration detention; and

    (b)  the applicant has made a valid application for a substantive visa; and

    (c)  the applicant holds a Bridging E (Class WE) visa; and

    (d)  the applicant is not seeking to be granted a further Bridging E (Class WE) visa that is subject to conditions other than those that apply to the Bridging E (Class WE) visa that the applicant currently holds.

    (3)  This subclause applies if:

    (a)  an officer who is authorised by the Secretary for the purposes of this clause was not available to interview the applicant:

    (i)  at the time of application; or

    (ii)  if the bridging visa could be granted under regulation 2.21B, at the time of decision; and

    (b)  the applicant is not in immigration detention; and

    (c)  the applicant has made a valid application for a substantive visa; and

    (d)  the applicant has previously held, but does not currently hold, a Bridging E (Class WE) visa.

    Note: For subclauses (2) and (3)--in certain circumstances, a Bridging E (Class WE) visa may also be taken to have been granted without application to a non-citizen who is in immigration detention. See the Act, s 73. In addition the Minister may grant a Bridging E (Class WE) visa to non-citizens who are in criminal detention or are unwilling or unable to make a valid application: see r 2.25.

    (4)  This subclause applies if the applicant is a person:

    (a)  to whom subclause 050.212(4AAA) applies; or

    (b)  to whom subclause 050.212(4AB) continues to apply.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Bridging visa application form

15. The applicant identifies as married and declared that he had overstayed a visa. He described this as ‘Have problem with someone who makes my visa.’ The applicant applies for the bridging visa on the basis that he is the applicant for a substantive visa. He is not waiting for a decision in relation to a substantive visa application but intends to lodge a substantive visa application. He holds a Malaysian passport that expired [in] 2020. The applicant was asked to provide detail about this. The applicant wrote:

16. ‘Need more time for staying in australia. I can't go back my home country for health & security reason.’

    Delegate decision record

17. According to page 2 of the delegate decision record ‘several attempts have been made by phone and email to contact the applicant with no response as at 04/02/2021.’ The delegate was ‘not satisfied that the applicant met cl.050.222 because the applicant had not been interviewed by an authorise officer and subclauses 050.222(2), (3) and (4) do not apply.’ The applicant ‘did not respond to multiple attempts made to contact you via telephone or email.’

    Review application

18. The applicant had asked the Registrar to reduce the fee for the review application. The applicant advised that he had three dependants aged [respective ages]. He wrote that he did not have a bank account and was asked in the form whether he received financial support from anyone. He claimed he did not but ‘just received money gift from people who I help like doing household cleaning.’ He detailed fortnightly expenses of $200 for rent, $50 for utilities, $100 for food and $50 for car/transport expenses. He provided four ‘Tax Invoice / Statement documents address to ‘[applicant’s name variant]’ for Room Rent for particular periods. The request for fee reduction was refused and the applicant used a cheque to pay the review application fee.

19. On 14 July 2021 the Tribunal wrote to the applicant and requested that he advise the Tribunal if his residential address of [Address 1], had changed. The Tribunal received no response.

20. The Tribunal wrote to the applicant on 11 August 2021 and noted that he had been refused the bridging visa on the basis that he did not satisfy cl.050.222. The Tribunal invited the applicant to provide a written submission to demonstrate how he satisfied that clause by 18 August 2021. The applicant did not do so.

21. The Tribunal wrote to the applicant on 19 August 2021 and noted that he had not provided the submission, nor had he completed and returned the ‘Response to hearing invitation’ form. The Tribunal asked the applicant to confirm that he received the email of 11 August 2021 and asked whether the applicant was going to provide a submission as requested. The applicant did not respond.

22. On 24 August 2021 the Tribunal telephoned the applicant to confirm whether he had received the hearing invitation form and the request for a written submission. Tribunal left a voice message asking for a return call. The applicant did not do so.

    FINDINGS AND REASONS

23. The issue in this case is whether the applicant satisfies cl.050.222. If the applicant satisfies this clause, then the Tribunal must remit the bridging visa application back to the delegate with a direction that the applicant satisfies cl.050.222. If the applicant does not satisfy this clause, then the Tribunal must affirm the delegate refusal decision.

24. For the following reason, the decision under review must be affirmed.

25. The evidence is that the applicant was not interviewed by an officer authorised by the Secretary.

26. The evidence is that the officer was available for the interview, as evidenced by the fact that multiple attempts were made by the department to contact the applicant to arrange an interview.

27. As the applicant has not been interviewed, he does not satisfy the clause in issue.

    CONCLUSION

28. For the above reasons, the applicant does not satisfy cl.050.222.

    DECISION

29. The Tribunal affirms the decision to refuse to grant the applicant a Bridging E (Class WE) visa.

    Nathan Goetz
    Member