2119935 (Migration)

[2022] AATA 1455

2119935 (Migration) [2022] AATA 1455 (28 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2119935

MEMBER:James Silva

DATE:28 April 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision refusing to grant the applicant a Bridging C visa, and substitutes a decision that the Bridging C visa application is not valid and cannot be considered.

Statement made on 28 April 2022 at 2:44pm

CATCHWORDS

MIGRATION – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – voluntary application for a substantive visa – substantive visa application finally determined – Court’s jurisdiction in relation to primary decision – no valid application for judicial review – decision under review set aside          

LEGISLATION

Migration Act 1958, ss 73, 359
Migration Regulations 1994, Schedule 1 Item 1303(3)(c)(i); Schedule 2, cls 030.211, 050.212

CASES

MIAC v Khandakar [2011] FCAFC 22

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 of the Minister for Home Affairs to refuse to grant the applicant a Bridging C (Class WC) visa under s.73 of the Migration Act 1958 (the Act).

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 applicant applied for the visa on 6 December 2021; at that time she held a Bridging C visa that expired on 9 December 2021. The delegate refused the application on 20 December 2021, on the basis that the applicant did not meet cl.030.211(2), as the applicant’s substantive visa application had been finally determined; and there was no evidence she met the alternative requirements for the grant of a subclass 030 visa.

4. For the reasons stated below, the Tribunal finds that the Bridging C visa application is not valid, and cannot be considered.

   THE BRIDGING C VISA APPLICATION

5. The applicant lodged Form 1005 ‘Application for a bridging visa’, on 6 December 2021. On the form, she stated that she was seeking the visa to give her lawful status while awaiting the outcome of judicial review.

   Background to the application

6. The applicant most recently entered Australia [in] August 2017, as the holder of a visitor visa (Electronic Travel Authority, subclass 601). She applied for a protection visa application on 28 March 2018, and the Department made a decision to refuse to grant the protection visa on 4 November 2021.

7. On 11 April 2018, the applicant was granted a Bridging C visa without work rights, in association with her protection visa application. On 10 July 2018, she was granted a Bridging C visa without conditions. This remained in force until 9 December 2021. The applicant currently holds no visa; her migration status of ‘unlawful’.

8. At the time of application for the Bridging C visa, 6 December 2021, the applicant’s circumstances were as follows:[1]

   §  She held a Bridging C visa that was about to expire on 9 December 2021.

   §  As noted above, the Department had earlier refused her protection visa application, on 4 November 2021.

   §  On [date] November 2021, the applicant completed and signed an application form for judicial review with the Federal Circuit and Family Court of Australia (FCFCOA). The applicant indicated on the form that she was seeking review of a decision made by the AAT on 4 November 2021.

   §  The Tribunal has little information as to the status of the judicial review application to the FCFCOA, as of 6 December 2021.

   -   The Tribunal wrote to the applicant on 18 March 2022, requesting further information about the purported judicial review application, but received no reply.

   -   At hearing, she referred to various documents before her, in a confused manner. She said that she had received emails from ‘Vic Filing’ – likely a reference to the Melbourne Registry of the FCFCOA - on 24, 25 and 26 November 2021, asking about the ‘AAT decision’. She did not provide a copy of the correspondence or further details.

   [1] The Tribunal has pieced this information together from the delegate’s decision record, and documentary and oral evidence that the applicant has provided.

9. At hearing, the Tribunal also asked for details of any subsequent developments in relation to the purported FCFCOA application. The applicant appeared to have difficulty distinguishing between the Department, the Tribunal and the Court, and between her protection visa and bridging visa applications. She stated vaguely that ‘NSW Client Services’ had contacted her on 8 December 2021. This appears to be a reference to the Department contacting her following receipt of the Bridging C visa application. The applicant said, without details, that she had not heard from the FCFCOA for some time.

10. The Tribunal put to the applicant that a Tribunal officer had searched the Commonwealth Courts Portal, as well as the Department’s weekly litigation reports covering the period of her purported judicial review application, but was unable to locate any application relating to her. It put this information to the applicant pursuant to the procedure in s.359AA of the Act.[2] The applicant opted to provide her comments/responses orally, at hearing. Essentially, these consisted of various questions relating to the fees payable for the current review application, and her future migration status.

    [2] The Tribunal alerted the applicant that there were two issues at hand: (a) the validity of her Bridging C visa application, and (b) if it was valid, whether she met the criteria for the visa grant. It applied the procedure set out in s.359AA, insofar as it was relevant if the Tribunal were to affirm the decision subject to this review.

11. On 22 April 2022, the applicant sent an email with two documents: (a) a further copy of the completed FCFCOA application form; and (b) a copy of an affidavit to the FCFCOA, signed on [date] December 2021. Attached to the affidavit is a copy of the Department’s protection visa decision record of 4 November 2021.

12. The Tribunal finds, on the limited available evidence, that the applicant completed the FCFCOA judicial review application form on [date] November 2021 and attempted to lodge it. It appears that the FCFCOA Registry sought further information about the purported ‘AAT decision’ of 4 November 2021 (which was an incorrect reference to the Department’s decision), in successive emails on 24, 25 and 26 November 2021. [In] December 2021, the applicant signed an affidavit transmitting to the FCFCOA a copy of the Department (primary) decision dated 4 November 2021.

13. The Tribunal finds, on the limited available evidence that, as of 6 December 2021, the FCFCOA had not accepted or processed the application in any way, as it was still in the process of establishing whether the AAT decision of 4 November 2021 existed. Relevantly, the Act states that the FCFCOA has no jurisdiction in relation to a primary decision: x.476(2)(a).

    RELEVANT LAW

14. Schedule 1 to the Migration Regulations (Regulations) sets out the requirements for making a valid application for a bridging visa. Item 1303 applies to Bridging C visas. The attachment to this decision sets out excerpts. Relevantly, Item 1303(3)(c) requires:

    Either:

    (i) the applicant has made a valid application for a substantive visa that has not been finally determined; or

    (ii) both of the following apply:

    A.application has been made, within statutory time limits, for judicial review of a decision in relation to the applicant’s substantive visa application, and the judicial proceedings (including proceedings on appeal, if any) have not been completed;

    B.the applicant held a Bridging C (Class WC) visa granted on the basis of the applicant’s substantive visa application.

15. The substantive visa relevant to this matter is the applicant’s protection visa application.

    CLAIMS AND EVIDENCE, AND FINDINGS

16. The material before the Tribunal includes the completed Form 1005 ‘Application for a bridging visa’; the decision record of 20 December 2021, refusing to grant the Bridging C visa; and several documents provided by the applicant to support this application, in particular: (a) a copy of a completed application for the Federal Circuit and Family Court of Australia, Melbourne Registry, in relation to an ‘Administrative Appeal Decision [of] 4 November 2021, signed by the applicant [later in] November 2021; and (b) an affidavit to the FCFCOA signed and dated [in] December 2021, to which the applicant appended a copy of the Department’s decision record of 4 November 2021.

17. The Department and Tribunal files include a range of other material, relating to the applicant’s earlier student visa application and her protection visa application; to earlier bridging visa grants; and to her request for a Tribunal fee reduction. The Tribunal has found no material in these documents relevant to this review, beyond the information provided by the applicant and in the delegate’s decision record that is subject to this review.

18. The applicant attended a Tribunal hearing on 22 April 2022, to give evidence and present arguments, particularly in relation to the validity of the application. The hearing was conducted with the assistance of an interpreter in the Chinese (Mandarin) and English languages. The applicant is unrepresented in this matter. The hearing was held during the COVID-19 pandemic, and the Tribunal exercised its discretion to hold the hearing by telephone. It considered it reasonable to do so, having regard to the nature of the matter, the applicant’s circumstances (in particular, her location in Melbourne and her unlawful migration status), and the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

19. The applicant demonstrated some knowledge of English, but as noted above, appeared to have a limited understanding of migration law.

    Validity of the application

20. The applicant applied for a Bridging C visa on 6 December 2021, using Form 1005. On the form, she indicated that she was seeking a bridging visa to give her lawful status while awaiting the outcome of judicial review.[3]

    [3] This is apparent from the applicant’s answers to questions 1 and 14 on the form.

21. The Tribunal finds that, as of 6 December 2021, the applicant’s protection visa application had been finally determined. The Department made the refusal decision on 4 November 2021; the applicant had been validly notified of that decision; and she had not lodged an application for merits review with the AAT. She therefore does not meet Schedule 1 Item 1303(3)(c)(i).

22. The Tribunal is not satisfied, on the available material, that the applicant had made an application for judicial review of a decision in relation to her substantive visa application, and the judicial proceedings were not completed.

    §  For the reasons stated above, the applicant’s account of the emails received from the FCFCOA Registry on 24, 25 and 26 November 2021 strongly suggest that the Court had not accepted the application at face value. The affidavit of [date] December 2021 (with a copy of the Department’s decision attached) reinforces the Tribunal’s view that the Court had not accepted the application, because of doubts about the decision for which the applicant was seeking review, and hence, the Court’s jurisdiction.

    §  In MIAC v Khandakar,[4] the Federal Court considered the meaning of the words ‘has applied for judicial review’ in cl.050.212(4)(a), which does not include the words ‘within statutory time limits’. The Court did not accept the Minister’s submission that these words meant ‘has made a competent application for’. Relevantly, in that case, the High Court had the discretion to accept an application made outside the time limit. In the present case, s.476(2)(a) states that the FCFCOA has no jurisdiction in relation to a primary decision, and there is no discretion for the FCFCOA or any other court to enliven the jurisdiction.

    [4] MIAC v Khandakar [2011] FCAFC 22 Federal Court of Australia, Emmett, Stone & Foster JJ, NSD 1115 of 2010, 28 February 2011

23. The Tribunal concludes that the applicant had not made an application for judicial review. She therefore does not meet Schedule 1 Item 1303(3)(c)(ii).

24. The Tribunal finds that the Bridging C visa application of 6 December 2021 does not meet Item 1303(3)(c). It follows that the criteria in Schedule 1 are not met, and the application was not validly made.

    DECISION

25. The Tribunal sets aside the decision refusing to grant the applicant a Bridging C visa and substitutes a decision that the Bridging C visa application is not valid and cannot be considered.

    James Silva
    Member

    ATTACHMENT: Schedule 1: Item 1303 – Bridging C (Class WC)

    (1) Form:  The approved form specified by the Minister in legislative instrument made for this item under subregulation 2.07(5).

    (2)  Visa application charge: […]

    (3)  Other:

    (a)  An application must be made at the place, and in the manner, (if any) specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5). 

    (b)  Applicant must be in Australia but not in immigration clearance.

    (c)  Either:

    (i)  the applicant has made a valid application for a substantive visa that has not been finally determined; or

    (ii)  both of the following apply:

    (A)  application has been made, within statutory time limits, for judicial review of a decision in relation to the applicant’s substantive visa application, and the judicial proceedings (including proceedings on appeal, if any) have not been completed;

    (B)  the applicant held a Bridging C (Class WC) visa granted on the basis of the applicant’s substantive visa application. 

    (ca)  Applicant must be:

    (i)  a person who is immigration cleared; or

    (ii)  an eligible non-citizen referred to in subregulation 2.20(6).

    (d)  Applicant:

    (i)  was not the holder of a substantive visa when he or she made the substantive visa application referred to in paragraph (c); and

    (ii)  does not hold a Bridging E (Class WE) visa; and

    (iii)  has not held a Bridging E (Class WE) visa since he or she last held a substantive visa. 

    (e)  Applicant is not in immigration detention or in criminal detention and has not escaped from either immigration detention or in criminal detention.

    (f)  Application by a person claiming to be a member of the family unit of a person who is an applicant for a Bridging C (Class WC) visa may be made at the same time and place as, and combined with, the application by that person.