2103615 (Migration)

[2021] AATA 3801

2103615 (Migration) [2021] AATA 3801 (18 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2103615

MEMBER:Nathan Goetz

DATE:18 August 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 18 August 2021 at 1:12pm

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – applicant has no intention to ever depart Australia voluntarily –no valid substantive visa application pending with the Department – unlawful Non-Citizen –decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 73, 195A
Migration Regulations 1994, Schedule 2, r 2.20, 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 Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act).

   IDENTITY, MIGRATION HISTORY AND CHRONOLOGY

2. The applicant identifies as a [age]-year-old male citizen of Bangladesh who arrived in Australia on [date] May 2013 as an irregular maritime arrival.

3. On 10 July 2013 the applicant was granted a bridging visa. On 8 August 2013 the applicant applied for a protection visa.

4. On 4 September 2013 the bridging visa granted 10 July 2013 ceased. On 5 September 2013 the applicant was granted a bridging visa.

5. On 8 October 2014 a delegate refused to grant the protection visa. On 27 October 2014 the applicant applied to the Tribunal to review the protection visa refusal decision. On 3 March 2016 the Tribunal affirmed the protection visa refusal decision.

6. On 1 April 2016 the bridging visa granted on 5 September 2013 ceased. The applicant became an unlawful non-citizen.

7. On 12 May 2016 the applicant appealed the Tribunal decision to affirm the protection visa refusal decision to the Federal Circuit Court. On 18 May 2018 the Federal Circuit Court dismissed the appeal.

8. On 4 June 2018 the applicant appealed the decision of the Federal Circuit Court to the Federal Court. On 16 November 2018 the Federal Court dismissed the appeal.

9. On 11 December 2018 the applicant appealed the decision of the Federal Court to the High Court. On 20 March 2019 the High Court dismissed the appeal.

10. On 24 February 2020 the applicant applied for a bridging visa. On 24 February 2020 a delegate refused to grant the bridging visa. On 12 March 2020 the applicant applied to the Tribunal for review of that refusal decision. On 3 August 2020 the Tribunal found it had no jurisdiction to review the refusal decision.

11. On 9 February 2021 the applicant applied for the bridging visa that is the subject of this Decision Record. At the time of the bridging visa application, Class WE contained two subclasses: Subclasses 050 and 051.

12. On 2 March 2021 the delegate refused to grant the bridging visa on the basis that the applicant did not satisfy cl.050.211 and did not satisfy cl.051.211.

13. On 22 March 2021 the applicant applied to the Tribunal to review the bridging visa refusal decision.

14. On 3 August 2021 the Tribunal wrote to the applicant and invited him to appear at a Tribunal hearing on 18 August 2021 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

15. On 18 August 2021 the applicant appeared at the Tribunal hearing. The Tribunal was satisfied that a telephone hearing was appropriate given to COVID-19 pandemic. The hearing was conducted with the assistance of an interpreter in the English and Bengali languages.

    CRITERIA FOR THE VISA

    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 reg 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. 

    Eligible non-citizen

18. Clause 051.211 is met if, at the time of application, the applicant was eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), or (11).

19. The applicant must continue to satisfy this criterion at the time of decision: cl.051.221

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Bridging visa application form

20. According to the bridging visa application form, the applicant seeks the bridging visa on the basis that he is making arrangements to depart Australia. However, he wrote that he was not making arrangements to depart Australia. He provided no explanation for this apparent inconsistency.

    Review application

21. The Tribunal wrote to the applicant prior to the Tribunal hearing noting the basis upon which the delegate refused to grant the bridging visa and invited the applicant to provide a written submission addressing how he met cl.050.211 or cl.051.211. The applicant did not provide a response addressing the criteria in issue. Instead, the applicant wrote:

22. “I made applications for Bridging Visa E. I am not having any visa and considered unlawful for sometime...l don't have work rights l don't have Medicare or and assistance with my day to day of my life.. currently with covid19 my situation is even worst. I need a visa until covid19 situation settles. Please help me to temporarily have a visa until l can go back to Bangladesh.”

23. Discussion at Tribunal hearing

24. The applicant confirmed his current age, his present residential address (which was the same address the Tribunal had on file for the applicant) and agreed with his migration history as outlined in this Decision Record.

25. The applicant told the Tribunal he did not have a valid Bangladesh passport. He previously held one, but this was taken from him by the people smugglers in [Country 1] during his transit to Australia. The applicant said he had not applied for a replacement Bangladesh passport because friends he travelled with told him that they had applied for replacement Bangladesh passports, but they had not been granted by the Bangladesh Government. The applicant told the Tribunal that this was because the Bangladesh Government does not recognise the them as citizens or that they are refugees in Australia.

26. The Tribunal asked the applicant how he would be able to return to Bangladesh if he did not have a passport. The applicant said that he had no answer, but he would do whatever the Australian Government decided. The Tribunal asked the applicant whether he was planning on returning to Bangladesh. The applicant said he was not. He questioned why he would return to Bangladesh given that he had come to Australia crossing the ocean and could have been drowned.

27. The Tribunal noted that bridging visas were temporary visas and designed to regularise a person’s migration status in Australia while their visa applications were finalised or the applicant made arrangements to depart Australia. The Tribunal asked the applicant his purpose in applying for the bridging visa. The applicant said he applied for the broidgingvisa because he wants to stay in Australia. He noted the difficult situation with lockdown, that he did not have a Medicare card and could not visit a doctor. He did not go out for fear of being caught by police. He cannot go to charitable organisations or receive financial help. He does not have a job. That is why he applied for the bridging visa. He needed permission to stay here.

28. The Tribunal noted to the applicant the inconsistency in what he was telling the Tribunal when compared to what he wrote in the bridging visa application form and the recent response to the Tribunal concerning how he met the criteria for the bridging visa. In both the bridging visa application form and the response, the applicant claimed that he needed the bridging visa to make arrangements to depart Australia. The applicant wrote that he needs the bridging visa until he can go back to Bangladesh. The applicant then said that if the Australian Government decided to forcibly remove him from Australia he would follow that requirement and he could do nothing about it. The Tribunal observed to the applicant that he was not permitted to remain in Australia without a visa and he did not depart when his appeal to the High Court was refused, which undermined his assertion that he follows migration requirements. The applicant said that if the Australian Government could get him a Bangladesh passport then he would return to Bangladesh.

29. The Tribunal noted that the applicant had not responded in writing to the Tribunal’s request for a submission to demonstrate how he met cl.050.211 or cl.051.211. The Tribunal asked if the reason he did not provide a submission addressing this criteria was because he conceded that he did not meet either of those clauses. The applicant said that the reason he did not respond was because he does not know English and did not understand what those clauses meant. The Tribunal noted that the delegate put the reasons for refusal into the delegate Decision Record, and the applicant had applied to the Tribunal to review the refusal decision. To the Tribunal’s way of thinking, this suggested that the applicant had read the delegate Decision Record and disputed the finding that the applicant did not meet cl.050.211 or cl.051.211, which is why he asked the Tribunal to review the refusal decision. The Tribunal invited the applicant to tell the Tribunal how the finding that the applicant did not meet cl.050.211 or cl.051.211 was wrong. In response, the applicant said he just wanted to stay in Australia. He had no choice when he travelled to Australia by boat. He took that journey and needed the Tribunal’s help to get permission to stay in Australia. He said that he did not understand the complexities of migration law.

30. The Tribunal asked the applicant about his migration status when he applied for the bridging visa. He spoke about the difficulties he had understanding English whenever he was interviewed or appeared in court, and also difficulties in reading correspondence sent from Australian authorities. He noted he usually had a friend read this and explain it to him. Later, the applicant conceded that at the time he applied for the bridging visa, he held no visa.

31. The Tribunal noted to the applicant that one of the issues that it would consider when determining whether he meet the criteria for the bridging visa was whether it was reasonably practicable for the applicant to be removed from Australia to Bangladesh at this time. The Tribunal invited the applicant to make a submission about whether it was or was not practicable. The applicant responded that he heard that Australia was the best country and that people here are good with humanity. He noted the help he received in Australia and that his reason for coming to Australia was to stay here. When asked again whether he wanted to make a submission about the reasonably practicability of his removal from Australia to Bangladesh at this time, he said he did not want to stay anything about that. He did, however, agreed with the Tribunal’s assessment that the COVID-19 pandemic had interrupted international travel. The Tribunal’s assessment was based on the advice from the Australian Government Smart Traveller website where it noted this advice.[1]

    [1] Australian Government Smart Traveller AND REASONS

32. The question of whether the grounds for granting the bridging visa pursuant to cl.050.212 is not being considered by the Tribunal. The applicant has not been refused the bridging visa on that basis.  However, the applicant’s responses at the Tribunal hearing raise serious questions about whether he would satisfy cl.050.212(2). The Tribunal is sceptical that the applicant is making, or the subject of, any acceptable arrangements to depart Australia. His responses to the Tribunal demonstrate that the applicant has no intention to ever depart Australia voluntarily.

33. The issue in this case is whether the applicant meets cl.050.211 or cl.051.211. If the applicant meets either of those clauses, then the Tribunal must remit the bridging visa application back to the department for reconsideration with an appropriate direction about the satisfied clause. If the applicant fails to meet those clauses, then the Tribunal must affirm the refusal decision.

34. For the following reasons, the Tribunal has concluded that decision under review must be affirmed.

    Clause 050.211

35. This clause requires two things. First, the applicant must be either an unlawful non-citizen or the holder of particular types of visas. Clearly, the applicant satisfies 050.211(1) because he was an unlawful non-citizen (that is, holding no visa) at the time he applied for the bridging visa, and remains an unlawful non-citizen at the time the Tribunal made its decision.

36. However, the applicant does not satisfy cl.050.211(2) because the Tribunal concludes that he is captured by subregulation 2.20(17). As cl.050.211(2) is drafted in terms that the applicant is not an eligible-non citizen of a kind provided in subregulation 2.20(17), the fact that he is an eligible non-citizen of a kind provided in subregulation 2.20(17) means that he does not satisfy cl.050.211(2), and therefore fails to satisfy cl.050.211 in its entirety. The Tribunal concludes that the applicant is captured by subregulation 2.20(17) for the following reasons.

37. Subregulation 2.20(17) requires three things. They are:

    (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.

38. The applicant is an unlawful non-citizen meaning that (a) is satisfied. As the applicant is not in immigration detention, this means that s.195A is not available to the Minister as that is only available if the applicant was in immigration detention, meaning that (b) is satisfied. The question is whether (c) is satisfied.

39. The Macquarie Dictionary (online) defines ‘practicable’ to mean capable of being put into practice, done, or effected, especially with the available means or with reason or prudence; feasible. In the context of the subregulaton, this meaning is confined by whether it is ‘reasonable.’ The same dictionary defines ‘reasonable’ to mean agreeable to reason or sound judgement, not exceeding the limit prescribed by reason; not excessive: and moderate. Whether something is reasonably practicable is not the same as whether it is possible.

40. The applicant has no valid Bangladesh passport. Global travel has been interrupted by the COVID-19 pandemic. When it comes to whether it would be reasonably practicable to remove the applicant from Australia to Bangladesh at this time, the Tribunal cannot conclude that removing an applicant during the course of a global pandemic with disruptions to international travel, where that applicant has no valid passport for return to his home country could be considered reasonably practicable. This means that (c) is satisfied. As the applicant meets the requirements for subregulation 2.20(17), he therefore does not meet cl.050.211(2).

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

    Clause 051.211

42. The Tribunal is not satisfied that the applicant is an eligible non-citizen of a kind provided in sub regulation 2.20(7), (8), (9), (10) or (11) for the following reasons.

43. In relation to 2.20(7), it is required that the applicant has not turned 18 years of age. In relation to 2.20(8), it is required that the applicant to have turned 75 years of age. In relation to 2.20(9) and (10), the Minister has not applied for judicial review of a decision concerning any of the type of visas provided in those subregulations. In relation to 2.20(11), it is required that the applicant be a member of the same family unit to whom 2.20(10) applies.

44. Noting the applicant’s age, it could not be argued that at the time he applied for the bridging visa he was under 18 years of age, had or had turned 75 years of age. The migration history demonstrates that the Minister has not applied for judicial review of any decision made in respective of any substantive visa. The applicant has not demonstrated that he is a member of the same family unit of any person who satisfies 2.20(10).

45. Therefore, the applicant does not meet cl.051.211.

    CONCLUSION

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

47. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 051 (Bridging (Protection Visa Applicant)) visa.

    DECISION

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

    Nathan Goetz
    Member