2108600 (Migration)

[2021] AATA 2696

2108600 (Migration) [2021] AATA 2696 (7 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2108600

MEMBER:C. Packer

DATE:7 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 7 July 2021 at 12:19pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging E) – application for substantive visa finally determined by tribunal’s decision, with no application for judicial review – combined application for Subclass 051 visa – not a relevant eligible non-citizen – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), (9), 73, 189(1)
Migration Regulations 1994 (Cth), Schedule 1, item 1305(3)(c), Schedule 2, cl 050.212(3), (3A)

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 25 June 2021. 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.050.212.

3. The decision to refuse to grant the visa was made on 30 June 2021 on the basis that the applicant did not meet the requirements in cl.050.212.

4. The applicant appeared by video before the Tribunal on 7 July 2021 to give evidence and present arguments. He spoke fluent English and an interpreter was not used. During the hearing he appeared to fully understand questions and he gave coherent answers and explanations. I assess that he was competent to give evidence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The grounds for seeking the visa - cl.050.212

6. At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.

7. In this case, the applicant is seeking to meet cl.050.212(3) or cl.050.212(3A). The applicant does not claim to meet, and does not meet, any of the other alternative criteria in cl.050.212.

8. For the reasons below, the applicant does not meet cl.050.212.

   Substantive visa application

9. Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

10. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act.

11. The delegate’s decision (a copy provided to the Tribunal by the applicant) shows the applicant’s migration history that includes:

    • On 29 July 2016, you returned to Australia on another Visitor (subclass 600) visa which permitted you to remain onshore until 29 October 2016.
    • On 21 October 2016, you lodged a Protection (subclass 866) visa application and were granted an associated Bridging A (class WA) visa (BVA) on 01 November 2016.
    • On 15 October 2018, you lodged another Protection (subclass 866) visa application and this application was deemed invalid on 17 October 2018.
    • [In] October 2017, you were remanded into criminal custody and charged with “Agg sex assault-victim with cognitive impairment-SI”.
    • On 03 November 2017, your BVA visa was cancelled under section 116(1)(e)(i) of the Act on the basis that you are a risk to the health and safety of a segment of the Australian community, particularly to vulnerable women. As a result you became an Unlawful Non-Citizen (UNC).
    • [In] November 2019, you were convicted of “Agg sex assault-victim with cognitive impairment-SI” and sentenced to 5 years and 3 months imprisonment with a non-parole period of 3 years and 6 months, expiring on 29 March 2021.
    • On 12 February 2020 your Protection visa application was refused. On 27 February 2020 you sought merits review at the Administrative Appeals Tribunal (AAT). Following your release from criminal detention on 29 March 2021, you were subsequently detained by Australian Border Force officers pursuant to section 189(1) of the Migration Act 1958 (the Act) and transferred to [a Detention Centre], where you currently remain.
    • On 23 June 2021, the AAT made a decision to affirm the delegate’s decision to refuse your Protection Visa application.
    • On 25 June 2021 you lodged an application for a Bridging E (class WE) visa (BVE). The Detention Review Officer was notified about the lodgement of this application on 28 June 2021, as required under Item 1305(3)(c) of the Migration Regulations. It is this BE application that is currently under assessment.

12. The applicant made a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia, when on 21 October 2016 he lodged a Protection (subclass 866) visa application. However, this Protection (subclass 866) visa application was finally determined when the AAT made a decision on 23 June 2021 to affirm the delegate’s decision to refuse the Protection visa application. Accordingly, at the time of application on 25 June 2021 the applicant cannot satisfy the requirement that there is a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined. The applicant has not made any other application for a substantive visa, and he does not seek to lodge another application for a substantive visa.

13. Accordingly, the applicant does not meet cl.050.212(3).

    Judicial review, merits review, s.137K revocation

14. Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.

15. The applicant stated he intended to apply for judicial review of the AAT’s decision on 23 June 2021 to affirm the delegate’s decision to refuse the Protection Visa application. However, at the time of application on 25 June 2021 the applicant had not applied for judicial review of the AAT’s decision on 23 June 2021.

16. At hearing he explained he had located representatives who would seek judicial review on his behalf but they were still working on it. At hearing the Tribunal explained to him that he could not satisfy this requirement as the judicial review application had not been made by the date he applied for the Bridging E visa on 25 June 2021. 

17. In sum, at the time of application on 25 June 2021 the applicant cannot satisfy the requirement that the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa.

18. Accordingly, the applicant does not meet cl.050.212(3A).

    Conclusion

19. In sum, the applicant does not meet cl.050.212. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

20. The visa application is also an application 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

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

    C. Packer
    Member