2114408 (Migration)

[2022] AATA 1205

2114408 (Migration) [2022] AATA 1205 (4 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2114408

MEMBER:James Silva

DATE:4 April 2022

PLACE OF DECISION:  Sydney

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

Statement made on 04 April 2022 at 10:54am

CATCHWORDS

MIGRATION – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – substantive visa application finally determined – applicant did not hold any visa at date of application – applicant departed Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359A, 359C, 360, 363A
Migration Regulations 1994, Schedule 2, cls 030.212, 030.411

CASES

Hasran v MIAC [2010] FCAFC 40

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 Sri Lanka. He applied for a Bridging C (Class WC) subclass 030 visa on 14 October 2021. On 15 October 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. The delegate refused to grant the visa on the basis that the applicant did not cl.030.212 at the time of application. Subclause 030.212(1) requires that the applicant, at the time of application, must meet the requirements of cl.030.212(2), (2A), (3) or (5). The main reason was that the substantive visa application that the applicant had made in Australia had been finally determined, and he had not made a valid application for any other relevant substantive visa. The text of these subclauses is at the attachment to this decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicant meets the requirements of cl.030.212 for the grant of a Bridging C visa. A further issue is whether he meets the circumstances for the grant of the visa, as cl.030.411 requires that the applicant is in Australia (but not in immigration clearance).

6. On 15 March 2022, the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting him to provide comments on information that it considered would be part of the reason for affirming the decision under review.

7. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 29 March 2022, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The review applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

   Subclause 030.212

9. As noted above, the applicant must meet the requirements of cl.030.212(2), (2A), (3) or (5) at the time of application.

   Relevant facts

10. Material before the Tribunal[1] shows that the applicant applied for a protection visa. The Department refused the application, and the Tribunal affirmed the decision. The Federal Circuit and Family Court dismissed the application for judicial review on [a date in] September 2021. The matter was finally determined on that date. There is no evidence that he made for valid application for any other substantive visa[2], or that he or the Minister has sought judicial review in relation to any such application.

    [1] This information was subject to the Tribunal’s letter under s.359A, taken from the Department file, the Department’s movement records and the Tribunal’s litigation database.

    [2] A relevant substantive visa is of a kind that could be granted if he is in Australia.

11. The applicant held a Bridging C visa from 28 July 2020 to 8 October 2021, and a Bridging E visa from 22 to 27 November 2021. Hence, on the date of application for the Bridging C visa, he did not hold any visa.

    Analysis

12. As of 14 October 2021 (the date of application), the applicant has not made a valid application for a substantive visa of a kind that can be granted if he is in Australia, and which has not been finally determined. His protection visa application was finally determined on [that date in] September 2021. Accordingly, he does not satisfy cl.030.212(2) or cl.030.212(2A).

13. There were no ongoing judicial review proceedings as of 14 October 2021, in relation to a relevant substantive visa application. The Tribunal finds that the applicant does not satisfy cl.030.212(5).

14. As the applicant did not hold a Bridging C visa at the time of application, cl.030.212(3) does not apply to his circumstances.

15. As the applicant does not satisfy cl.030.212(2), (2A), (3) or (5), he does not meet cl.030.212 at the time of application.

    Subclause 030.411

16. A circumstance applicable to the grant of a Bridging C visa is that the applicant must be in Australia, but not in immigration clearance. Department movement records indicate that the applicant departed Australia on [a date in] November 2021. He therefore does not meet cl.030.411 and therefore, even if he were to meet the other criteria, he cannot be granted a Bridging C visa.

    Conclusion

17. The Tribunal concludes that the applicant does satisfy the criteria for the grant of a Bridging C visa.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a Bridging C (Class WC) visa.

    James Silva
    Member

    
    
    

    ATTACHMENT

    Criteria for the grant of a Bridging visa C (extract from the Migration Regulations 1994)

    030.211

    The applicant does not hold a Bridging E (Class WE) visa and has not held such a visa since last holding a substantive visa.

    030.212 

    (1)  The applicant meets the requirements of subclause (2), (2A), (3) or (5).

    (2)  An applicant meets the requirements of this subclause if: 

    (a)  the applicant is not the holder of a substantive visa; and 

    (b)  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 

    (ba)  either: 

    (i)  the bridging visa can be granted in respect of that application under regulation 2.21B; or 

    (ii)  that application was made at the same time, and on the same form, as the bridging visa application; and 

    (c)  that application has not been finally determined. 

    (2A)  An applicant meets the requirements of this subclause if: 

    (a)  he or she is not the holder of a substantive visa; and  

    (b)  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 

    (c)  that application has not been finally determined; and 

    (d)  he or she has previously been granted a Bridging C (Class WC) visa in respect of that application. 

    (3)  An applicant meets the requirements of this subclause if: 

    (a)  the applicant holds a Bridging C (Class WC) visa that:

    (i)  was granted as a result of a valid application, made in Australia, for a substantive visa of a kind that could be granted to an applicant who was in Australia; and

    (ii)  is subject to condition 8101; and 

    (b)  the Minister is satisfied that the applicant has a compelling need to work. 

    (5)  An applicant meets the requirements of this subclause if: 

    (a)  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 

    (aa)  that application was refused; and 

    (b)  either: 

    (i)  the applicant, or the Minister, has applied, within statutory time limits, for judicial review of a decision in relation to the applicant’s substantive visa application; or 

    (ii)  the applicant: 

    (A)  is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in subparagraph (i); and 

    (B)  made a substantive visa application that was combined with the substantive visa application mentioned in subparagraph (i); and 

    (c)  at the time of that application, he or she held a Bridging C (Class WC) visa; and  

    (d)  the judicial review proceedings (including proceedings on appeal, if any) are not completed.

    030.411

    The applicant must be in Australia, but not in immigration clearance.