2217096 (Migration)

[2024] AATA 172

2217096 (Migration) [2024] AATA 172 (19 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Chit Thian Chua

CASE NUMBER:  2217096

MEMBER:Member Nathan Goetz

DATE:19 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision of the delegate dated 18 November 2022 refusing to grant the applicant a Bridging B (Class WB) visa.

DIRECTION: The Tribunal directs under s 378(1) of the Migration Act 1958 (Cth) (the Act) in relation to this review that information that would identify the applicant must not be published by the Tribunal.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 a protection visa application made by the applicant (noting a number of provisions in the Act restrict publishing material that identifies protection visa applicants: e.g. ss 91X, 431 and 501K).

Statement made on 19 January 2024 at 4:27pm

CATCHWORDS

MIGRATION – cancellation – Bridging B (Class WB) visa – Subclass 020 (Bridging B) visa – lengthy stay in Australia – defective notification of visa refusal – no Bridging visa at time of application – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2 cls 020.211, 020.212, 020.221

CASES

DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64           

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 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 under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a Bridging B (Class WB) visa.

2. The applicant was represented in the review by an Australian legal practitioner.

   BACKGROUND AND CRITERIA FOR THE VISA

3. The applicant identifies as a female citizen of China presently located in Australia.

   Previous substantive visa applications

4. [In] March 2003 the applicant arrived in Australia holding a business (short stay) visa that was granted on 7 January 2003 while the applicant was offshore. That visa ceased on 2 April 2003.

5. On 31 March 2003 the applicant applied for a protection visa. On 20 May 2003 a delegate refused to grant the applicant the protection visa. On 20 May 2003 the delegate sent a letter notifying the applicant that the visa had been refused.

6. On 10 November 2022 the applicant applied to the Tribunal for review of the decision to refuse to grant her the protection visa. Despite the review being lodged over 19 and a half years after the protection visa was refused by the delegate, the Tribunal determined that it had jurisdiction to review the decision because the letter was defective, meaning that the time limit for lodging review of the decision had not expired: DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64. That review application remains outstanding: AAT case 2216450.

7. On 18 November 2022 the applicant was re-notified of the decision refusing to grant her the protection visa.

   Previous bridging visa applications

8. On 31 March 2003 the applicant was granted a Bridging A (Class WA) visa to regularise her migration status in Australia. That visa ceased on 8 September 2020.

9. On 13 December 2022 the applicant was granted a Bridging A (Class WA) visa to regularise her migration status in Australia. That visa remains in effect.

   Current visa application

10. On 10 November 2022 the applicant applied for the Bridging B (Class WB) visa. At the time the applicant applied for this visa, the criteria were contained in cl 020 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

11. On 18 November 2022 the delegate refused to grant the applicant the bridging visa on the basis that the applicant did not satisfy cl 020.211. This clause provides the following:

    020.211 

    The applicant is the holder of:

    (a)  a Bridging A (Class WA) visa; or

    (b)  a Bridging B (Class WB) visa.

12. The applicant is required to satisfy this clause at the time of visa application: cl 020.21 and at the time a decision is made on the visa application: cl 020.221.

13. The delegate decision record detailed that as the applicant was not the holder of either a Bridging A (Class WA) or Bridging B (Class WB) visa at both the time of visa application and at the time of decision, the applicant was unable to satisfy cl 020.212.

    CONSIDERATION OF EVIDENCE AND FINDINGS

14. The issue in this review is whether the applicant satisfies cl 020.212.

15. If the Tribunal finds that the applicant satisfies cl 020.212 the correct or preferable decision is to set aside the decision of the delegate dated 18 November 2022 refusing to grant the Bridging B (Class WB) visa and remit the visa application back to the delegate for reconsideration, with a direction that the applicant satisfies cl 020.212.

16. If the Tribunal finds that the applicant does not satisfy cl 020.212 the correct or preferable decision is to affirm the decision of the delegate dated 18 November 2022 refusing to grant the Bridging B (Class WB) visa.

17. For the following reasons, the Tribunal affirms the decision under review.

18. The Tribunal has considered all the evidence when making its findings.

19. In the visa application form, the applicant was asked for the class of visa she currently held or last held. The applicant identified this as a Bridging A (Class WA) visa. She applied for this visa so she could travel to New Zealand for a holiday between 1 December and 8 December 2022.

20. On 10 January 2024 the Tribunal wrote to the applicant under s 359(2) of the Act to request that the applicant provide the Tribunal with information in writing by 24 January 2024 to demonstrate that the applicant satisfied cl 020.211. That same day, the Tribunal also invited the applicant under s 360(1) of the Act to appear at a Tribunal hearing scheduled for 12 February 2024.

21. On 12 January 2024 the applicant wrote to the Tribunal and consented to the Tribunal making a decision on the review without the applicant appearing at the Tribunal hearing. In those circumstances, the Tribunal hearing was cancelled: s 360(2)(b), (3) of the Act. The Tribunal was asked to delay making a decision so that submissions could be made by 24 January 2024. The Tribunal agreed to this proposed course of the review.

22. On 18 January 2024 the applicant wrote to the Tribunal and conceded that the applicant did not satisfy cl 020.211 and that the decision under review should be affirmed.

23. The Tribunal finds on the basis of this concession that the applicant does not satisfy cl 020.211. It was properly made, because at the time the applicant applied for the Bridging B (Class WB) visa she did not hold either a Bridging A (Class WA) visa; or a Bridging B (Class WB) visa. The fact that the applicant now holds a Bridging A (Class WA) visa at the time of decision does not satisfy the criteria, because the applicant is required to satisfy the criteria both at the time of application and the time a decision is made.

    CONCLUSION

24. For the reasons given above, the Tribunal finds that the applicant does not satisfy cl 020.211.

    DECISION

25. The Tribunal affirms the decision of the delegate dated 18 November 2022 refusing to grant the applicant a Bridging B (Class WB) visa.

    Nathan Goetz

    
    

    Member