2206149 (Migration)

[2022] AATA 3034

2206149 (Migration) [2022] AATA 3034 (18 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2206149

MEMBER:Nathan Goetz

DATE:18 July 2022

PLACE OF DECISION:  Sydney

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

DIRECTION: The Tribunal directs under s 378(1) of the Migration Act 1958 (Cth) in relation to this review that information that would identify the applicant must not be published by the Tribunal.

The Tribunal is satisfied it is in the public interest that this material is not published because it would unreasonably reveal information about the applicant’s previous protection visa application (noting a number of provisions in the Migration Act 1958 (Cth) restrict publishing material that identifies protection visa applicants, e.g. ss 91X, 431 and 501K)].

Statement made on 18 July 2022 at 10:44am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – period of unlawful residence – substantia visa review application was consequently invalid – eligible non-citizen – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 73, 359, 360, 363
Migration Regulations 1994, Schedule 2, cl 050.212, 050.221, 050.211; r 2.20

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 to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act)

2. The applicant identifies as [age]-year-old male citizen of Malaysia presently located in Australia.

3. On 2 November 2015 the applicant was granted an electronic travel authority visa while he was offshore. [Later in] November 2015 the applicant arrived in Australia holding that visa. [In] January 2016 the applicant departed Australia before returning to Australia [in] March 2016. On 18 June 2016 the electronic travel authority visa ceased, and the applicant became an unlawful non-citizen.

4. On 8 September 2016 the applicant applied for a protection visa. On 9 September 2016 he was granted a bridging visa to regularise his migration status. On 24 October 2016 the protection visa application was deemed invalid. On 14 March 2018 the bridging visa ceased.

5. On 15 March 2018 the applicant applied for a protection visa. On 22 March 2018 he was granted a bridging visa to regularise his migration status. On 9 October 2018 the delegate refused to grant the protection visa.

6. On 6 November 2018 the applicant applied to the Tribunal for review of the decision to refuse to grant the protection visa. On 17 January 2018 the Tribunal decided it did not have jurisdiction to review the refusal decision because the review application had not been lodged within the prescribed timeframes: AAT case 1832659. On 12 February 2019 the bridging visa ceased, and the applicant became an unlawful non-citizen which he remains to date.

7. On 8 April 2022 the applicant applied to the Tribunal for review of the decision to refuse to grant the protection visa. On 1 July 2022 the Tribunal decided that it did not have jurisdiction to review the refusal decision because the applicant was renotified by the department of the refusal decision on 23 May 2020 and that therefore the review application had not been lodged within the prescribed timeframes: AAT case 2205275.

8. On 12 April 2022 the applicant applied for the bridging visa that is the subject of this review application. At that time Class WE contained two subclasses: Subclasses 050 and 051. The criteria for the grant of a Subclass 050 and 051 visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). On 22 April 2022 the delegate refused to grant the bridging visa on the basis that the applicant did not satisfy cl 050.212 or cl 051.211 of Schedule 2. On 26 April 2022 the applicant applied to the Tribunal for review of the refusal decision. The applicant commenced the current review application on 26 April 2022.

9. On 12 May 2022 the applicant subsequently applied for another bridging visa. On 23 May 2022 a delegate refused to grant the bridging visa.

10. On 1 July 2022 the Tribunal wrote to the applicant for two reasons.

11. 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 26 July 2022 to 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 was unable to make a decision favourable to the applicant on the basis of the material it had.

12. The second reason was to invite the applicant under s 359(2) of the Act to provide the Tribunal with information. The invitation noted that the delegate refused to grant the bridging visa on the basis that the applicant did not satisfy cl 050.212 or cl 051.211 of Schedule 2 of the Regulations and invited the applicant to provide information to demonstrate that he met either of those clauses. The invitation advised the applicant that if he did not provide the information within the prescribed timeframe then the Tribunal hearing scheduled for 26 July 2022 would be cancelled and the Tribunal would make a decision without taking any steps to allow or enable the applicant to appear at a Tribunal hearing.

13. The applicant did not provide the requested information by the prescribed timeframe. Accordingly, the Tribunal hearing was cancelled. The Tribunal made a decision on the material it had. There is no ability to hold a Tribunal hearing where the applicant had not complied with a request for information under s 359(2): ss 360(2)(c), 360(3), 363A of the Act.

    CONSIDERATION

14. In the bridging visa application form, the applicant selected his reason for applying for the bridging visa was ‘merits review at the Administrative Appeals Tribunal, or revocation of a visa cancellation.’

15. The applicant detailed that he applied for merits review at the Tribunal in case number 2205275 and that ‘during this COVID.. I need and begging to have a permission to work.’ He did not apply for revocation of a visa cancellation and did not intent to apply for revocation or review of a visa cancellation. He attached a letter from the Tribunal dated 11 April 2022 which acknowledged receipt of the review application lodged on 8 April 2022.

    FINDINGS AND REASONS

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

    The grounds for seeking the visa - cl 050.212

17. At the time of the visa application, the applicant must meet one of the alternatives set out in cl 050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl 050.221.

18. The applicant claims that he meets the grounds for seeking the bridging visa because he has applied for a review of the decision to refuse to grant a protection visa. He provided the AAT case number for the review application lodged on 8 April 2022.

    Substantive visa application

19. Subclause 050.212(3) is met if 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 that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

20. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s 5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without an application being made: s 5(9) of the Act.

21. At the time he lodged the applicant applied for the bridging visa on 12 April 2022, the applicant did have an outstanding review application on foot (namely, the review application lodged on 8 April 2022 concerning the 9 October 2018 decision to refuse to grant the protection visa). However, the applicant was renotified of the refusal decision on 23 May 2020, meaning that the ‘prescribed period within which a merits review application must be submitted’ had already passed, and the review application was consequently invalid.

22. Therefore, at the time the applicant applied for the bridging visa on 12 April 2022, he did not have a substantive visa application that had not been finally determined. Consequently, the applicant does not satisfy cl 050.212(3) of Schedule 2 of the Regulations.

23. The applicant has not claimed, nor is there any evidence to support, that the applicant would satisfy any alternative grounds (2)-(9) for seeking the visa.

24. Accordingly, the applicant does not satisfy cl 050.212 of Schedule 2 of the Regulations.

    Eligible non-citizen – cl 051.211

25. At the time of the visa application, the applicant must be an ‘eligible non-citizen’ as provided in subregulation 2.20(7), (8), (9), (10) or (11). The applicant must continue to satisfy this criterion at the time of decision: cl 050.221.

26. The applicant is not an eligible non-citizen as provided in the subregulations because subregulation 2.20(7)-(10) require the applicant to be a person who was either refused immigration clearance, or bypassed immigration clearance and came to the notice of Immigration as an unlawful non-citizen within 45 days of entering Australia. There is no evidence that the applicant is such a person. Further, the applicant is not an eligible non-citizen as provided in subregulation 2.20(11) because that subregulation requires the applicant to be a person who is a member of the same family unit as a person who satisfies subregulation 2.20(10). There is no evidence that the applicant is a member of such a person’s family unit.

27. Accordingly, the applicant does not satisfy cl 051.211 of Schedule 2 of the Regulations.

    CONCLUSION

28. For the above reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

29. For the above reasons, the applicant does not satisfy the criteria for the grant of a Subclass 051 (Bridging (Protection Visa Applicant)) visa.

    decision

30. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

    Nathan Goetz
    Member