2117602 (Migration) - [2022] AATA 1066

2117602 (Migration) [2022] AATA 1066 (7 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2117602
MEMBER:Nathan Goetz
DATE:7 April 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 07 April 2022 at 2:09pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – interviewed by an authorised officer – eligible non-citizen – protection claims – requirement to be interviewed – age requirements – member of the family unit – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007
Migration Act 1958, ss 73, 116, 359, 360, 363
Migration Regulations 1994, Schedule 2, cls 2 050.212, 050.222, 051.211; r 2.20
CASES
Singh v MICMSMA [2019] FCCA 2343
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

This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act).
CRITERIA FOR THE VISA
The requirement to be interviewed by an authorised officer - cl 050.222
Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause.
The exceptions are either: the applicant is not in immigration detention, holds a Bridging E visa, has made a valid application for a substantive visa, and will not be seeking a further Bridging visa E visa with different conditions; or, the applicant is not in immigration detention, does not hold (but previously held) a Bridging E visa, has made a valid application for a substantive visa and the authorised interview officer was not available at specific times; or the applicant meets cl 050.212(4AAA) or continues to meet cl 050.212(4AB); or, for visa applications made on or after 1 July 2021, an officer authorised for the purposes of the clause has decided it is not necessary to interview the applicant.
The applicant is required to meet this clause at the time a decision is made.
The requirement to be an eligible non-citizen – cl 051.211
Clause 051.211 requires that the applicant must be an eligible non-citizen referred to in subregulation 2.20(7), (8), (9), (10) or (11).
The applicant is required to meet this clause both at the time of application and at the time a decision is made.
BACKGROUND
The applicant identifies as 56-year-old male citizen of Malaysia currently located in Australia.
On 15 November 2021 the applicant applied for the bridging visa that is the subject of this decision record. At the time he applied for the bridging visa, Class WE contained two subclasses: Subclasses 050 and 051.
On 23 November 2021 the delegate refused to grant the bridging visa on the basis that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 1066
Decision Date: 7 April 2022

CaseChat Overview and Summary

The applicant, a 56-year-old male citizen of Malaysia, applied for a Bridging E (Class WE) visa, specifically Subclass 050 or 051. The delegate refused to grant the visa, finding the applicant did not satisfy either cl 050.222 or cl 051.211 of Schedule 2 to the Migration Regulations 1994 (Cth). The applicant sought review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the grant of a Bridging E visa, specifically cl 050.222 and cl 051.211. This involved determining if the applicant was an eligible non-citizen and satisfied any age or family unit requirements stipulated by the relevant clauses, and whether he was required to be interviewed.

The Tribunal's reasoning focused on the applicant's failure to satisfy the criteria for the Subclass 051 visa. While the Tribunal initially made an error in its correspondence regarding visa cancellation, it subsequently corrected this and requested information from the applicant demonstrating compliance with cl 050.222 and cl 051.211. The applicant responded with a letter expressing fear of returning to Malaysia and stating he had no witness letters or witnesses. The Tribunal concluded that the applicant did not satisfy the criteria for the grant of a Subclass 051 visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa.

Orders

Orders of the court

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Background

Background to the litigation

The applicant is required to meet this clause both at the time of application and at the time a decision is made.BACKGROUND The applicant identifies as 56-year-old male citizen of Malaysia currently located in Australia. On 15 November 2021 the applicant applied for the bridging visa that is the subject of this decision record. At the time he applied for the bridging visa, Class WE contained two subclasses: Subclasses 050 and 051. On 23 November 2021 the delegate refused to grant the bridging visa on the basis that the applicant did not satisfy either cl 050.222 or cl 051.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). On 25 November 2021 the applicant applied to the Tribunal to review the refusal decision. On 23 March 2022 the Tribunal wrote to the applicant under s 360(1) of the Act and invited him to appear at a Tribunal hearing on 20 April 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 the Tribunal was unable to make a favourable decision to the applicant on the material it had. On 23 March 2022 the Tribunal wrote to the applicant under s 359(2) of the Act and noted to the applicant that his visa had been cancelled by the delegate on the basis that he did not comply with s 116(1)(b) of the Act and requested information to demonstrate that the applicant did comply with that section of the Act. Clearly, the issuing of that letter was in error, because that was not the basis upon which the delegate made a decision with respect to the applicant’s bridging visa. Realising this error, the Tribunal issued another s 359(2) of the Act noting that the delegate had refused to grant the applicant the bridging visa on the basis that the applicant did not satisfy cl 050.222 and cl 051.211. The Tribunal requested information from the applicant that demonstrated he satisfied cl 050.222 and 051.211 and provided the applicant with the relevant clauses for his reference. The request for information was accompanied with a warning that if the applicant did not provide the Tribunal with the information requested by a specified date, the applicant would lose the right to appear at a Tribunal hearing and the Tribunal would make a decision on the review application without taking any steps to allow or enable the applicant to appear at a Tribunal hearing: ss 360(2)(b), 360(3), 363A of the Act. On 31 March 2022 the Tribunal received a letter from the applicant. It was attached to the 359(2) letter that asked for information to demonstrate that the applicant met cl 050.222 and cl 051.211. The letter is reproduced below with minor amendments for spelling and grammar: “I am [name]. I’m writing this letter because I don’t have any witness letters for my case. I also don’t have any witnesses in my case. When I came to Australia, I didn’t bring anything with me. I ran away from my country because I do not feel safe then or now. I am really scared going back to Malaysia. The Malaysian Government has changed many times, but I am still scared to return to Malaysia. I do not feel that my life and mental health is safe. I don’t know how to tell or write how I feel. I am scared to return to Malaysia.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons given above, the applicant does not satisfy the criteria for the grant of a Subclass 051 (Bridging (Protection Visa Applicant)) visa. DECISION The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.Nathan GoetzMember

Ratio Decidendi

Legal Principle Established

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