2111346 (Migration)

[2022] AATA 152

2111346 (Migration) [2022] AATA 152 (12 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2111346

MEMBER:Nathan Goetz

DATE:12 January 2022

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 12 January 2022 at 11:37am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by the visa conditions – enrolment in a full-time registered course – applicant convicted of offences – applicant proposed to delay departing Australia – COVID-19 pandemic international travel restrictions – interviewed by an authorised officer – valid application for a substantive visa – no pending judicial review or merits review on citizenship – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 116, 359, 360, 363A
Migration Regulations 1994, r 2.20; Schedule 2, cls 050.212, 050.222, 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 decision maker under s 65 of the Migration Act 1958 (Cth) to refuse to grant the applicant a Bridging E (Class WE) visa.

2. The applicant was represented in the review application by registered migration agent [named].

   BACKGROUND

3. The applicant identifies as [an age]-year-old male citizen of Taiwan presently located in Australia. He has travelled in and out of Australia since his first arrival in Australia [in] July 2016 holding a working holiday visa. His most recent arrival in Australia was [in] September 2019 holding a student visa. This visa was cancelled on 29 October 2020 under s 116(1)(b) of the Act because the applicant had not maintained enrolment in a full-time registered course as required by condition 8202 which was attached to that visa. The applicant became an unlawful non-citizen at that time.

4. On 5 December 2020 the applicant was sentenced to a 12-month community corrections order for theft and drug related offences. On 15 July 2021 the applicant was arrested for drug possession and contravention of the community corrections order. [In] July 2021 the applicant was released on bail to appear at [a] Magistrates’ Court [in] September 2021. On 16 July 2021 the applicant was granted a bridging visa until 30 July 2021 on the basis that the applicant would apply for a substantive visa, namely a partner visa. On 30 July 2021 that bridging visa expired without the applicant having applied for a partner visa.

5. On 29 July 2021 the applicant applied for the bridging visa that is the subject of this decision record. At the time of the visa application, Bridging E (Class WE) visas contained two subclasses, namely 050 (Bridging (General)) and 051 (Bridging (Protection visa applicant)). On 6 August 2021 the delegate refused to grant the applicant the bridging visa on the basis that the applicant did not satisfy cl 050.222 and cl 051.211 of Schedule 2 of the Migration Regulations 1994 (the Regulations). On 27 August 2021 the applicant applied to the Tribunal for review of the decision to refuse to grant him the bridging visa.

6. On 26 September 2021 the applicant applied for a protection visa. On 13 October 2021 a delegate refused to grant the protection visa.

7. On 14 October 2021 the applicant was granted another bridging visa on the basis that he was in criminal custody. That visa was valid until 25 November 2021. On 19 November 2021 the applicant was granted another bridging visa on grounds that he was making arrangements to depart Australia. That visa ceased on 17 December 2021 and the applicant became an unlawful non-citizen, which he remains to date.

8. On 10 December 2021 the Tribunal wrote to the applicant for two reasons.

9. The first reason was to invite the applicant under s 360(1) of the Act to appear at a Tribunal hearing commencing at 10:00am on 21 January 2022 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because it had considered the information it had and was unable to make a decision favourable to the applicant. As the applicant resided in Victoria and the Member was located in New South Wales, the Tribunal determined that a telephone hearing was appropriate.

10. The second reason was to invite the applicant under s 359(2) of the Act to provide the Tribunal with information. The letter noted the basis that the applicant was refused the bridging visa and requested the applicant provide information to demonstrate how he satisfied cl 050.222 and 051.211 of Schedule 2 of the Regulations. The letter advised the applicant that if he did not provide the Tribunal with the information in writing as requested by 24 December 2021 the Tribunal hearing on 21 January 2022 would be cancelled and the Tribunal would make a decision on the review application without taking any further steps to allow or enable the applicant to appear at the Tribunal: ss 360(3), 363A of the Act.

11. On 17 December 2021 the registered migration agent wrote to the Tribunal and advised that he was unable to reach the applicant. The agent noted that the last contact he had with the applicant a couple of months prior when the applicant’s partner advised that the applicant had been arrested. The agent advised that he had forwarded the Tribunal’s correspondence to the applicant’s email address. By 24 December 2021 the Tribunal had not received a response to the information requested under s 359(2) of the Act. Consequently, the Tribunal hearing was cancelled, and the Tribunal had made a decision on the review application without holding a Tribunal hearing.

    CRITERIA FOR THE VISA

    050.222 

    (1)  Unless subclause (2), (3), (4) or (5) 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.

    (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.

    (5)  This subclause applies if an officer who is authorised by the Secretary for the purposes of this clause has decided that it is not necessary to interview the applicant.

    These criteria are required to be satisfied at the time a decision is made.

    051.211 

    The applicant is an eligible non-citizen referred to in subregulation 2.20(7), (8), (9), (10) or (11).

    This criterion is required to be satisfied at the time the applicant applied for the bridging visa, and the applicant is required to continue to satisfy this criterion at the time a decision is made.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Bridging visa application form

12. The applicant declared that he was applying for the bridging visa on the grounds that he was departing Australia. He was a Taiwanese passport that expires [in] 2025. He was born in [a named] Township, Yilan state/province, Taiwan. His relationship status is never married.

13. The applicant wrote that he was making arrangements to depart Australia with proposed departure date [in] December 2021 by flight to Taiwan. He detailed the arrangements as:

14. “Due to the recent COVID-19 outbreaks in a few big cities in Taiwan including my hometown Yilan state, I was being advised by my family members that this is not a wise decision to return to the home country at this critical time. Hence, I propose to depart Australia in six months time provided the situation of Taiwan is better at the proposed time.

15. The passport that I provided will be using at that time will be the same one as I have attached in this very same application. While the flight ticket is yet to be determined as Sydney at this current state is still in lockdown and hence many international flights including the ones back to Taiwan.”

16. The applicant declared that he had never been convicted of an offence in any country or overstayed a visa in any country. These declarations are clearly not true but are not relevant to whether the applicant satisfies cl 050.222 or 051.211 of Schedule 2 of the Regulations.

    Delegate decision

17. The delegate decision detailed the applicant’s migration history which the Tribunal has repeated and expanded upon to provide an updated and comprehensive view of that history. The delegate decision noted that the applicant was an unlawful non-citizen in the community from 16 July 2021 until 30 July 2021.

18. The delegated decision maker detailed that an interview was required because the delegated decision-maker needed to consider whether the applicant would abide by the conditions which would attach to the bridging visa.

19. The delegate decision maker detailed that an email was sent to the applicant’s nominated email address on 30 July 2021 to arrange an interview. Telephone calls were made on 30 July 2021, 3 August 2021 and 6 August 2021 to the mobile telephone number the applicant provided to the department. An appointment for an interview on 6 August 2021 was made and sent to the applicant’s email address and by text to his mobile telephone number. The applicant did not respond to any of these events.

    FINDINGS AND REASONS

20. The issue in the review application is whether the applicant satisfies cl 050.222 or cl 051.211. If the applicant does satisfy either of those clauses, then the Tribunal must remit the decision back to the delegated decision maker with a direction that the applicant satisfies the relevant clause(s). If the applicant does not satisfy both of those clauses, then the Tribunal must affirm the decision to refuse to grant the applicant the bridging visa.

21. For the following reasons, the Tribunal must affirm the decision to refuse to grant the bridging visa.

    The interview requirement: cl 050.222

22. The applicant is required to be interviewed by an authorised officer unless exceptions to this requirement apply. The exceptions do not apply to the applicant for the following reasons.

23. First, the applicant has not made a valid application for a substantive visa as required by cl 050.222(2) and (3) to enliven the exception to the interview requirement. As far as the Tribunal is aware, the last substantive visa application that the applicant made was for a protection visa on 26 September 2021, but that matter concluded with a refusal to grant the visa on 13 October 2021. As that matter is concluded, the applicant has not is no longer a person who has a made a valid application for a substantive visa.

24. Second, the applicant does not have any judicial review or merits review relating to a citizenship decision, nor is the applicant awaiting a declaration from a court that the Act does not apply to him as required by cl 050.222(4) to enliven the exception to the interview requirement. Likewise, the applicant is not a member of the family unit of such a person to enliven the exception to the interview requirement.

25. Third, the delegate decision maker did not determine that an interview was unnecessary as required by cl 050.222(5) to enliven the exception to the interview requirement.

26. The evidence is that the applicant was not interviewed as required by cl 050.222.

27. Therefore, the applicant does not satisfy cl 050.222.

    Eligible non-citizen requirement: cl 051.211

28. The definition of an eligible non-citizen for the purpose of cl 051.211 is provided in subregulation 2.20(7), (8), (9), (10) or (11).

29. The evidence is that the applicant is [age] years of age. Therefore, the applicant would not satisfy 2.20(7) as that requires the applicant to be under 18 years of age. Likewise, the applicant would not satisfy 2.20(8) as that requires the applicant to have reached 75 years of age.

30. The evidence is that the applicant’s protection visa application was refused by a delegate on 13 October 2021. He has not lodged merits review or judicial review of that decision, nor has the Minister applied for judicial review of the decision related to the applicant’s protection visa application. Therefore, the applicant would not satisfy 2.20(9) or (10).

31. There is no evidence that the applicant is a member of the family unit who has made a protection visa application that is not finally determined, or a member of the family unit of a person who applied for judicial review, or a member of the family unit of a person concerning whom the Minister has lodged judicial review concerning that person’s protection visa application. Therefore, the applicant would not satisfy 2.20(11).

32. Therefore, the applicant is not an eligible non-citizen as provided by cl 051.211.

33. Therefore, the applicant does not satisfy cl 051.211.

    CONCLUSION

34. For the reasons given above, the applicant does not meet the requirements for the subclass 050 (Bridging (General)) nor the subclass 051 (Bridging (Protection visa applicant)) visas.

35. Therefore, the applicant does not satisfy the criteria for the Bridging E (Class WE) visa.

    DECISION

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

    Nathan Goetz
    Member