2109384 (Migration)

[2021] AATA 4314

2109384 (Migration) [2021] AATA 4314 (20 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2109384

MEMBER:James Silva

DATE:20 October 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to refuse to grant the applicant a Bridging A (Class WA) (Subclass 010) visa.

Statement made on 20 October 2021 at 01:15pm

CATCHWORDS
MIGRATION – Bridging A (Class WA) (Subclass 010) visa – protection visa application had already been finally determined by the Tribunal – no pending judicial review proceedings – applicant has not applied for any of the visas specified in sub-clauses – decision under review affirmed

LEGISLATION
Migration Act 1958, s 359A
Migration Regulations 1994, r 2.21; Schedule 2, cls 010.211, 010.221

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 by a delegate of the Minister refusing to grant the applicant a Bridging A (class WA) (subclass 010) visa under s.73 of the Migration Act 1958 (‘the Act’).

2. The applicant entered Australia on [date] January 2016 as the holder of [a visitor] visa. On 8 April 2016, she applied for a protection visa, and on 13 April 2016, she was granted a Bridging A visa in association with the protection visa application. The Minister’s delegate refused the protection visa application, and the Tribunal (differently constituted) affirmed the delegate’s decision on 15 August 2018. The applicant sought judicial review of the Tribunal’s decision. The Federal Circuit Court upheld the decision on [date] August 2020, and the Full Federal Court dismissed the application for judicial review on [date] June 2021.

3. On 8 July 2021, the applicant applied for a Bridging A visa. On 23 July 2021, the delegate refused to grant the bridging visa on the basis that the applicant did not meet cl.010.211. Also on 23 July 2021, the applicant applied to the Tribunal for a review of the refusal decision.

4. The Bridging A visa that the applicant held in association with her protection visa application ceased on 22 July 2021. She currently holds a Bridging E (subclass 050) visa that was granted on 16 August 2021.

5. The applicant appeared before the Tribunal on 20 October 2021 to give evidence and present arguments. The hearing was conducted via videoconference, and held in English, in which the applicant is proficient. The applicant nominated as a witness Ms [A], whom she described as her partner. Ms [A] was present at the hearing, and endorsed the applicant’s comments about her migration and personal circumstances.

6. On 14 October 2021, the Tribunal sent the applicant a letter under s.359A, inviting her to comment or respond to information at an interview conducted immediately before the hearing. Essentially, the information was the migration and visa history set out in paragraph 2 above. Its relevance was that the applicant did not appear to have any ongoing merit or review applications for substantive visas, or to meet any other criteria for the grant of a Bridging A visa. The applicant provided brief comments/responses at interview.

7. The applicant is unrepresented in this matter.

   CRITERIA FOR BRIDGING A VISA

8. The applicant was refused the Bridging A visa on the basis that she did not met cl.010.211 at the time of application, or cl.010.221 at the time of decision.

9. Clause 010.211 contains six subclauses. Subclause (1) provides that the criteria for the Bridging A visa is met if the applicant meets the requirements of subclause (2), (3), (4), (5) or (6). The criteria must be satisfied at the time the applicant makes the application for the Bridging A visa.

10. At the time of application, the applicant must meet one of the following criteria:

    ·     the applicant held a substantive visa at the time of making an application for another substantive visa which has not been finally determined, and the applicant applied for a bridging visa in respect of that application or one could be granted under reg 2.21B: cl.010.211(2);

    ·     the applicant held a substantive visa at the time of making an application for another substantive visa which was refused, and:

    -a relevant judicial review application has been made within time and those proceedings are not completed; and

    -the applicant held a Bridging A or B visa at the time of the judicial review application: cl.010.211(3);

    ·     the applicant holds a Bridging A or B visa with work restrictions which was granted as a result of a valid visa application made in Australia (while they held a substantive visa) for a substantive visa that could be granted in Australia, has not applied for a protection visa, and the Minister is satisfied the applicant has a compelling need to work (as defined in reg 1.08): cl.010.211(4);

    ·     the applicant has applied for a bridging visa in respect of a valid application for a specified partner or aged parent visa which has not been finally determined, and holds or previously held a Bridging A visa granted without application under reg 2.21A in respect of the specified visa application: cl.010.211(5); or

    ·     the applicant has made a valid application for a specified partner or aged parent visa which was refused, and:

    -a relevant judicial review application has been made within time and those proceedings are not completed; and

    -the applicant holds or previously held a Bridging A visa granted without application under reg 2.21A in respect of the specified visa application: cl.010.211(6).

11. The applicant must continue to meet the time of application criteria at the time of decision: cl.010.221.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. At the time of applying for the Bridging A visa, on 8 July 2021, the applicant must meet one of the criteria in subclauses 010.211(2), (3), (4), (5) or (6): cl.010.211(1). In this case:

    §  The applicant does not meet cl.010.211(2), as her protection visa application had already been finally determined[1] by the Tribunal on 15 August 2018.

    §  The applicant does not meet cl.010.211(3), as the judicial review proceedings relating to the protection visa application were completed on 24 June 2021: cl.010.211(3)(d).

    §  She does not meet cl.010.211(4), as she had applied for a protection visa: cl.010.211(4)(b).

    §  Finally, the applicant does not cl.010.211(5) or cl.010.211(6), as she has not applied for any of the visas specified in those sub-clauses.

    [1] That is, the application has been processed and the merits review completed, as per the definition of ‘finally determined’ in s.5(9) of the Act.

13. As the applicant does not meet any of these sub-clauses, she does not meet cl.010.211(1).

14. The Tribunal finds on the available material that the applicant does not meet the requirements of cl.010.211 and cannot be granted the Bridging A visa.

15. As the applicant does not meet cl.010.211, it follows that she does not continue to meet the time of application criteria at the time of decision. She therefore does not satisfy the requirements of cl.010.221.

    Other matters

16. During the course of this review, the applicant provided a range of documents, most of which did not appear directly relevant to this review, i.e. of the decision to refuse to grant her a Bridging A visa. In a statutory declaration received on 2 August 2021 (date unclear), she expresses interest in making ‘another appeal’ following the Federal Court’s dismissal of her protection visa case in July 2021; and she alludes to her financial and health situation. The applicant provided documents, such as a marriage certificate between herself and Ms [A], dated [July] 2018; a letter dated 21 October 2011 from a friend in Malaysia, attesting to the relationship; a general support letter from [an] Association, dated 12 October 2021; a medical report of 18 October 2021 relating to [an] injury; a tenancy agreement and bank statements (in the context of seeking a fee reduction); and some documents relating to Ms [A]’s migration status.

17. At hearing, the applicant explained that she wished to remain in Australia to seek treatment [for] a workplace [injury], and for Ms [A] to remain in Australia to provide support. She also said that she and Ms [A] are in debt, including for lawyers’ fees and court costs.

18. The Tribunal advised that this review concerned only the decision of 23 July 2021 to refuse to grant her a Bridging A visa, and that other migration and visa matters were beyond the scope of the review. It recommended that she discuss her and Ms [A]’s migration options with the Department, and seek migration or legal advice if possible. It undertook to briefly note these matters in the decision record.

    DECISION

19. The Tribunal affirms the decision to refuse to grant the applicant a Bridging A (Class WA) (Subclass 010) visa.

    James Silva
    Member