2112971 (Migration)

[2022] AATA 84

2112971 (Migration) [2022] AATA 84 (11 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2112971

MEMBER:Nathan Goetz

DATE:11 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 11 January 2022 at 8:35pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – visa conditions – application for Ministerial Intervention – eligible non-citizen – removal from Australia not reasonably practicable – applicant not in immigration detention – no Bangladesh passport – COVID-19 pandemic international travel restrictions – decision under review affirmed     

LEGISLATION

Migration Act 1958 (Cth), ss 195A, 359, 359A, 360, 417
Migration Regulations 1994 (Cth), r 2.20; Schedule 2, 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 to review a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under the Migration Act 1958 (Cth) (the Act).

   BACKGROUND

2. The applicant identifies [an age]-year-old male citizen of Bangladesh who is presently located in Australia.

3. [In] March 2013 the applicant arrived in Australia as an unauthorised maritime arrival.

4. On 22 May 2013 the applicant was granted a bridging visa that was valid until 17 July 2013.  On 6 June 2013 the applicant applied for a protection visa.

5. On 22 July 2013 the applicant was granted a bridging visa that was valid until 18 July 2016.

6. On 22 August 2014 a delegate refused to grant the applicant the protection visa. On 8 September 2014 the applicant applied to the Tribunal for review of the decision to refuse to grant the applicant the protection visa.

7. On 18 June 2016 the Tribunal affirmed the decision to refuse to grant the applicant a protection visa. [In] July 2016 the applicant applied to the Federal Circuit Court for judicial review of the Tribunal decision.

8. On 19 July 2016 the applicant was granted a bridging visa that was valid until 10 November 2017. That was the last time the applicant held a bridging visa. Since that time, he has been an unlawful non-citizen. [In] February 2017 the Federal Circuit Court dismissed the judicial review.

9. [In] February 2017 the applicant appealed to the Federal Court against the decision of the Federal Circuit Court. [In] October 2017 the Federal Court dismissed the appeal.

10. On 23 August 2021 the applicant applied for the bridging visa that is the subject of this decision record. At the time the applicant applied for the bridging visa, it contained two subclasses, namely subclass 050 and subclass 051. On 7 September 2021 the delegate refused to grant the bridging visa on the basis that the applicant did not satisfy cl 050.211 (due to the applicant not satisfying cl 050.211(2)) or cl 051.211 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). On 24 September 2021 the applicant applied to the Tribunal to review the refusal decision.

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

12. The first reason was to invite the applicant under s 360(1) of the Act to appear at a Tribunal hearing scheduled to commence at 10:00am on 20 January 2022. The Tribunal was required to invite the applicant to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review because the Tribunal had considered the material it had and was unable to make a decision favourable to the applicant.

13. The second reason was to invite the applicant under s 359(2) of the Act to provide the Tribunal with information. The information requested was information that demonstrated that the applicant satisfied cl 050.211(2) or cl 051.211 of Schedule 2 of the Regulations. The applicant was directed to provide the information in writing to the Tribunal by 24 December 2021.

14. The applicant did not provide the Tribunal with information as directed. Accordingly, the applicant lost the right to appear at a Tribunal hearing. The Tribunal hearing was cancelled, and the Tribunal has made a decision on the review application without taking any steps to allow or enable the applicant to appear at a Tribunal hearing: ss 360(3), 359A of the Act.

    CRITERIA FOR THE VISA

    050.211 

    (1)  The applicant is:

    (a)  an unlawful non-citizen; or

    (b)  the holder of a Bridging E (Class WE) visa; or

    (c)  the holder of a Subclass 041 (Bridging (Non-applicant)) visa.

    (2)  The applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17).

    The applicant is required to satisfy cl 050.211 at the time he applied for the visa and is required to continue to satisfy cl 050.211 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).

    The applicant is required to satisfy cl 051.211 at the time he applied for the visa and is required to continue to satisfy cl 051.211 at the time a decision is made.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Bridging visa application form

15. The bridging visa application form discloses that the applicant was seeking a bridging visa on the basis that he had applied for ‘Ministerial Intervention.’ The Tribunal understands this to be a request by the applicant for the Minister to intervene and use powers under s 417 of the Act to substitute to the Tribunal decision to affirm the decision to refuse to grant the applicant a protection visa with a decision that is more favourable to the applicant.

16. The applicant declared that he was born in Comilla town/city, Comilla state/province, Bangladesh. He discloses that he has never been married. He provided an ‘Australian Government Evidence of Immigration Status’ card and a New South Wales driver licence.

17. He has not requested the Minister to intervene in his case. He previously made a request for the Minister to intervene in his case. He detailed this as “I have applied in the past for ministerial intervention.” He then detailed that he would “seek ministerial intervention once my BE is granted.”

    FINDINGS AND REASONS

18. The issue in the review application is whether the applicant satisfies cl 050.211 or cl 051.211 of Schedule 2 of the Regulations.

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

    The applicant does not satisfy cl 050.211

20. The applicant does not satisfy cl 050.211 because he does not satisfy cl 050.211(2). This requires the applicant to not be an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17). The applicant has not claimed to satisfy cl 050.211(2). His failure to provide information to demonstrate he satisfies cl 050.211(2) is a concession that he does not meet the requirements of that clause. If the applicant contended that he did satisfy that clause, he would have provided information to demonstrate this when directed to do so.

21. Subregulation 2.20(17) provides that a person is an eligible non-citizen (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.

22. The evidence is that the applicant is an unlawful non-citizen in Australia. He has been an unlawful non-citizen since his last bridging visa expired on 10 November 2017.

23. The evidence is that s 195A of the Act is not available to the Minister because s 195A of the Act is only able to be used on a person who is in immigration detention. The evidence is that the applicant is not in immigration detention.

24. The evidence is that it would not be reasonably practicable at this time to remove the applicant from Australia. The Macquarie Dictionary defines ‘practicable’ as ‘capable of being put into practice, done, or effected, especially with the available means or with reason or prudence; feasible.’ That dictionary defines ‘reasonable’ as not exceeding the limit prescribed by reason; not excessive, or moderate, or moderate. The Tribunal is satisfied that it would not be reasonably practicable to remove the applicant from Australia at a time when there is no evidence that he has a Bangladesh passport to enable his return to Bangladesh and it is general public knowledge that the COVID-19 pandemic has disrupted international travel, limiting the availability of international flights from Australia. The applicant provided no evidence to the contrary.

25. As the applicant would meet the definition of an eligible non-citizen provided by 2.20(17), he would therefore fail to meet cl 050.211(2) which requires the applicant to not be an eligible non-citizen as provided by any of the subregulations contained in that clause.

26. As the applicant does not satisfy cl 050.211(2), he therefore fails to satisfy cl 050.211 in its entirety.

    The applicant does not satisfy cl 051.211

    The applicant does not satisfy cl 051.211 because he is not an eligible non-citizen referred to in subregulation 2.20(7), (8), (9), (10) or (11). The applicant has not claimed to satisfy cl 051.211. His failure to provide information to demonstrate he satisfies cl 051.211 is a concession that he does not meet the requirements of that clause. If the applicant contended that he did satisfy that clause, he would have provided information to demonstrate this when directed to do so.

27. The applicant is not an eligible non-citizen referred to in 2.20(7) because that subregulation requires the applicant to be under 18 years of age. The evidence is that the applicant is over 18 years of age.

28. The applicant is not an eligible non-citizen referred to in 2.20(8) because that subregulation requires the applicant to have turned 75 years of age. The evidence is that the applicant has not reached 75 years of age.

29. The applicant is not an eligible non-citizen referred to in 2.20(9) because the applicant has not made a protection visa application that is not finally determined, as his protection visa application was finalised at a Tribunal review application in 2016. It also does not apply to the applicant because at the time he applied for the bridging visa (and also at the time of decision), he had not applied for judicial review of the decision to refuse to grant him a protection visa, as the judicial review concluded in 2017. It also does not apply to the applicant because the Minister did not apply for judicial review of the applicant’s protection visa application. The applicant therefore does not meet 2.20(9)(b)(i), (ii), (iii) which is required for him to satisfy 2.20(9).

30. The applicant is not an eligible non-citizen referred to in 2.20(10) for the same reasons he was not an eligible non-citizen referred to in 2.20(9).

31. The applicant is not an eligible non-citizen referred to in 2.20(11) because he is not a member of the family unit of a person who satisfies 2.20(10).

    CONCLUSION

32. For the above reasons, the applicant does not satisfy the criteria for a Bridging (Class WE) general (subclass 050) visa.

33. For the above reasons, the applicant does not satisfy the criteria for a Bridging (Class WE) Protection visa applicant (subclass 051) visa.

    DECISION

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

    Nathan Goetz
    Member