2105116 (Migration)

[2021] AATA 3653

2105116 (Migration) [2021] AATA 3653 (20 September 2021)

Corrigendum

DIVISION:Migration & Refugee Division

CASE NUMBER:  2105116

MEMBER:James Silva

DATE OF DECISION:  20 September 2021

DATE CORRIGENDUM

SIGNED:1 October 2021

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

Incorrect decision date listed on the cover page of the Decision Record.

Correct decision date should be 20 September 2021.

James Silva
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2105116

MEMBER:James Silva

DATE:20 April 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision refusing to grant the applicant a Bridging C visa, and substitutes a decision that the Bridging C visa application is not valid and cannot be considered.

Statement made on 20 September 2021 at 8:30am

CATCHWORDS
MIGRATION – Bridging C (Class WC) visa – s.48A barred applicant from making a further protection visa application – second protection visa application invalid – bridging visa application of 9 April 2021 was invalid – no ongoing application for judicial review – decision under review set aside

LEGISLATION
Migration Act 1958, ss 48, 65
Migration Regulations 1994, Schedule 2, cl 030.212

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. The visa applicant is a national of the People’s Republic of China (PRC). He applied for a Bridging C (Class WC) subclass 030 visa on 9 April 2021. On 13 April 2021,a delegate of the Minister for Immigration refused to grant the visa under s.65 of the Migration Act 1958 (the Act). This is an application for review of that decision.

2. Bridging C (Class WC) contains one subclass (030) and provides temporary lawful status to an unlawful non-citizen who voluntarily makes an application for a substantive visa before they have come to the attention of the Department of Home Affairs (the Department). It provides lawful status while the application for the substantive visa is being processed and is available to persons who are not in detention and have not held a BVE since last holding a substantive visa.

3. At the time of application, the applicant already held a Bridging C visa issued on 6 July 2020, which was granted in association with a protection visa application lodged that day. The Bridging C visa was subject to condition 8101 (No Work). The application lodged on 9 April 2021 was for a Bridging C visa with permission to work.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.030.212 at the time of application. The main reason was that the applicant did not meet cl.030.212(2), as he had applied for a substantive visa, but it had been finally determined. The delegate found that the applicant did not meet any of the other criteria for the grant of the visa.

5. The applicant is unrepresented in this matter.

6. A critical issue in this case is whether the Bridging C visa application lodged on 9 April 2021 was a valid application. If it is not a valid application, the delegate, and the Tribunal on review, is unable to consider it.

7. For the following reasons, the Tribunal has concluded that the application was not valid, and cannot be considered.

   THE BRIDGING C VISA APPLICATION

8. The applicant lodged Form 1005 ‘Application for a bridging visa’, on 9 April 2021. The decision subject to this review was made on 13 April 2021. However, it gives the ‘date of visa application’ as 6 July 2020, i.e. the date on which the applicant made a protection visa application; this was taken to be an application for a Bridging C visa.

9. A potential issue arises as to whether the decision of 13 April 2021 relates to the bridging visa application taken to have been made on  6 July 2020, or the bridging visa application made on 9 April 2021. The Tribunal finds that the decision refers to the application made on 9 April 2021. It takes into account: (a) the Department’s written advice confirming this; (b) the timing of the second bridging visa application and the refusal decision; and (c) the fact that the application taken to have been made on 6 July 2020 resulted in the grant of a Bridging C visa, which the applicant continues to hold. In these circumstances[1], the Tribunal understands the ‘date of visa application’ cited in the decision record of 13 April 2021 to refer not to the date of the bridging visa application, but rather to the substantive visa application with which it is associated.

   [1] According to the applicant’s evidence at hearing, and as confirmed by the Department’s Movements Database records.

   RELEVANT LAW

10. Schedule 1 to the Migration Regulations (Regulations) sets out the requirements for making a valid application for a bridging visa. Item 1303 applies to Bridging C visas. Relevantly, Item 1303(3)(c) requires:

    Either:

    (i) the applicant has made a valid application for a substantive visa that has not been finally determined; or

    (ii) both of the following apply:

    A.application has been made, within statutory time limits, for judicial review of a decision in relation to the applicant’s substantive visa application, and the judicial proceedings (including proceedings on appeal, if any) have not been complied;

    B.the applicant held a Bridging C (Class WC) visa granted on the basis of the applicant’s substantive visa application.

11. The substantive visa relevant to this matter is a protection visa. Section 48A provides that, subject to section 48B, a non-citizen who had made an application for a protection visa, where the grant of the visa has been refused, may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone. Section 48B provides that the Minister may determine that s.48A does not apply, if he or she thinks that it is in the public interest to do so.

    CLAIMS AND EVIDENCE, AND FINDINGS

12. The Tribunal has before it the Department file, which includes the completed Form 1005 ‘Application for a bridging visa’, the applicant’s supporting documentation (a statutory declaration, medical certificate and bank statement) and the delegate’s decision record. The applicant provided a copy of the delegate’s decision record with the application for review, and a further bank statement in the context of seeking a fee reduction.

13. During the review, the Tribunal obtained confirmation from the Department that the decision under review related to the bridging visa application of 9 April 2021, and received advice on 16 September 2021 that the Department had assessed the application of 9 April 2021 as valid. On 27 August 2021, the Tribunal wrote to the applicant, setting out its preliminary view that the bridging visa application of 9 April 2021 was invalid, as the basis for discussion at hearing and/or any submissions he may wish to make. The applicant did not provide substantive comments on these points.

14. The applicant attended a Tribunal hearing on 16 September 20211, to give evidence and present arguments, particularly in relation to the validity of the application. The hearing was conducted with the assistance of an interpreter in the Chinese (Mandarin) and English languages. He is unrepresented in this matter. The hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by telephone. It considered it reasonable to do so, having regard to the nature of the matter, the applicant’s circumstances, and the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

    Validity of the application

15. The applicant applied for a protection visa on 24 July 2013. The Department refused the application and the Tribunal affirmed the decision on review. The matter was finally determined by the Federal Circuit Court [in] March 2017, and the associated Bridging C visa ceased on 11 April 2017. The applicant has remained in the migration zone to the present date.

16. Section 48 of the Act therefore prevents him from making a further protection visa application while in the migration zone. There is no evidence of the Minister having lifted the bar under s.48B to allow him to make a further protection visa application.

17. On 20 July 2020, a person described as the applicant’s partner lodged a protection visa application, which included the applicant as a member of the same family unit as her. This application was taken to be an application for bridging visas, with the result that the applicant was granted a Bridging C visa, and his partner a Bridging A visa. The applicant’s Bridging C visa included condition 8101 (No Work). As noted above, on 9 April 2021, he lodged the Form 1005 ‘Application for a bridging visa’, to have condition 8101 removed.

18. The Tribunal finds that the applicant’s protection visa application of 20 July 2020 was invalid, as he had previously made an unsuccessful protection visa application while in the migration zone, and s.48A barred him from making a further protection visa application. It notes that the Department also determined the protection visa application to be invalid, but only did so on 13 April 2021.

19. The Tribunal also finds that the bridging visa application of 9 April 2021 was invalid.

    §  The application does not meet Item 1303(c)(i) of Schedule 1, which requires that the applicant had made a valid application for a substantive visa that had not been finally determined. This is because the protection visa application of 20 July 2020 was invalid.

    §  The application also does not meet Item 1303(c)(ii), as the applicant has no ongoing application for judicial review (Item 1303(c)(ii)(A). In relation to Item 1303(c)(ii)(B), which requires that he held a Bridging C visa ‘granted on the basis of the applicant’s substantive visa application’, it is unnecessary for the Tribunal to determine whether the mere fact of the Bridging C visa grant is sufficient, or whether it requires the associated substantive visa application to have been valid.

20. On 16 September 2021, the Department provided the following comments in relation to the validity of the Bridging C visa application of 9 April 2021:

    09/04/2021: BVC application valid at time of lodgement as the applicant had a valid application for a substantive visa that had not been finally determined and met other Sch1 criteria, hence the BVC application was valid.

    13/04/2021: BVC correctly refused rather than made invalid as per decision record, i.e. Regulation 030.212(2)(c) not met at time of decision because the associated substantive application had been finally determined.

    Therefore, regardless of the final determination on the substantive application which was made invalid earlier that same day 13/04/2021, because Sch1 was met and BVC was valid at time of application, BVC required a decision (refusal) rather than be made invalid.

21. The Tribunal understands the Department’s position to be that the applicant’s protection visa application of 20 July 2020 was valid, up to the moment on 13 April 2021 when a delegate ‘invalidated’ it. As such, the Bridging C visa application met Item 1303(c)(i), presumably on the basis that the decision under review was made prior to the delegate’s invalidation of the protection visa application. In the Tribunal’s view, however, the effect of s.48A is that the protection visa application of 20 July 2020 was invalid from the outset, and could not form the basis for the applicant to meet Item 1303(c)(i) on 9 April 2021 (or indeed, on 20 July 2020).

22. The Tribunal finds that the Bridging C visa application of 9 April 2021 does not meet Item 1303(3)(c). It follows that the criteria in Schedule 1 are not met, and the application was not validly made.

    decision

23. The Tribunal sets aside the decision refusing to grant the applicant a Bridging C visa and substitutes a decision that the Bridging C visa application is not valid and cannot be considered.

    James Silva
    Member