2318572 (Migration)

[2023] AATA 4740

2318572 (Migration) [2023] AATA 4740 (28 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2318572

MEMBER:Nora Lamont

DATE:28 November 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 28 November 2023 at 11:38am

CATCHWORDS   
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicant has no substantive visa application that has been made – has no substantive visa application nor is the Tribunal satisfied that the applicant will apply for such a visa within a specified period – applicant has not satisfied the criteria for seeking Ministerial Intervention – criminal history – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 5, 73, 116, 376
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221

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 E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act) and a decision made by an authorised officer relating to requiring a security under s 269 of the Act.

2. The applicant applied for the visa on 17 October 2023. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, which are set out in Part 050 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria include cl 050.221 and 050.212

3. The applicant’s application was refused as the applicant did not meet clause 050.221 and clause 050.212 of Schedule 2 of the Migration Regulations and the delegate’s reasons are as follows:

   The decision to refuse to grant the visa was made on 13 November 2023 on the basis that:
   I am not satisfied that you meet the requirements of clause 050.221 in Schedule 2 of the
   Regulations because you do not continue to meet the criteria set out in clause 050.212.
   On 9 November 2023 you submitted Form 1022 and Form 1446 requesting withdrawal of your Protection visa application. You noted that withdrawal followed discussions with your migration agent and their advice. You also advised that you will apply for a substantive visa after discussions with your migration agent. On 13 November 2023 your application was withdrawn and notification sent to you. I note that there is no further clarity as to any timeframes and/or the type of visa you will be applying for. Nor is there a further substantive application lodged at this time. Therefore, I am not satisfied that you continue to satisfy this clause. I have further considered all the grounds which may apply to you however as no current matters are pending before the department, Administrative Appeals Tribunal, Full Federal Court, High Court and the Minister, there are no other grounds that can be enlivened.

4. The applicant appeared before the Tribunal on 23 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was not represented by a lawyer or migration agent.

5. The applicant’s file contained a s376 non-disclosure certificate. The Tribunal reviewed the certificate and deemed it was valid. The Tribunal redacted some information on the certificate and gave a copy to the applicant. The Tribunal explained the information and the reason for the certificate and told the applicant that it was not information relevant to the review. The applicant left the redacted copy of his certificate in the hearing room.

6. The applicant’s visa/migration history is as follows:

   ·24/10/2007 - Applied for TU-572 visa (offshore)

   ·29/11/2007 – TU-572 visa granted (ceased 31/1/2008)

   ·31/1/2008 – Applied for TU-572 visa (Student Permission to Work), granted (ceased 15/3/2010)

   ·14/3/2010 – Applied for TU-572 visa (Student Further Stay), associated bridging visa A granted

   ·13/4/2010 – TU-572 granted (ceased 30/8/2010)

   ·30/8/2010 – Applied for TU-572 visa, associate bridging visa A granted

   ·13/1/2011 – TU-572 granted (ceased 4/11/2011)

   ·7/11/2011 – Applied for TU-572 visa, associated bridging visa C granted

   ·11/1/2012 – TU-572 granted (ceased 21/6/2013)

   ·30/6/2013 – Applied for Bridging visa A, granted (ceased 27/6/2013)

   ·21/6/2013 – Applied for TU-572 (Student Further Stay), associated bridging visa A granted

   ·29/7/2013 – TU-572 granted (ceased 9/11/2014)

   ·17/2/2015 - Applied for UC-457 visa (offshore)

   ·7/3/2015 – UC-457 visa granted (ceased 7/3/2019)

   ·6/3/2019 – UC-457 visa cancelled under s116

   o15/3/2019 – Applied for review with AAT – 1906223

   o23/5/2019 – Review affirmed by AAT – 1906223

   o[date]/7/2019 – Judicial review commenced – [deleted] (FCC)

   o[date]/3/2022 – Minister win

   o[date]/5/2022 – Judicial review commenced – Full Federal Court appeal

   o[date]/6/2023 – Minister loss. Matter remitted to AAT for reconsideration (2310394)

   o13/9/2023 – AAT makes decision to Set Aside Cancellation decision, substitute with decision that visa not cancelled

   o14/9/2023 – Department made a further decision to cancel the visa pursuant to s 116 of the Act

   o[date]/10/2023 – Judicial review sought with Federal Court

   o[date]/10/2023 – Minister win

   ·20/3/2019 – Applied for Bridging visa E

   ·5/4/2019 – Application for Bridging visa E refused

   ·15/6/2020 – Applied for Bridging visa E

   ·15/6/2020 – Bridging visa E granted on criminal detention grounds (ceased 2/11/2020)

   ·17/10/2023 – Applied for Bridging visa E

   ·20/10/2023 – Bridging visa E refused

   o21/10/2023 – Review with AAT commenced - 2316951

   o2/11/2023 – Remit with Direction

   o6/11/2023 – Interview conducted

   o13/11/2023 – Bridging visa E refused

   o15/11/2023 – Review with AAT commenced – 2318572 (current application)

   ·23/10/2023 – Applied for Protection visa XA-866

   ·13/11/2023 – XA-866 application withdrawn

7. The applicant provided the Tribunal with the following documents:

   ·First, Second and Third Removal notices.

   ·E-mail titled ‘Ministerial Intervention on October 5, 2023.

   ·An email conversation by Protection Assessment NSW.

   ·An s57 Natural Justice letter.

   ·A messaged conversation with [Mr A]’s assistants.

   ·A refusal letter from the Department.

   ·A detainee request because the applicant was suffering hay fever.

   ·An email from the Department to apply for a BVE.

   ·A federal court decision by [a named judge].

   ·A Tribunal decision.

   ·Timesheets from previous employer [Employer 1].

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

9. At the hearing the applicant said he had an injunction application at the court to stop from being removed from Australia. However, the Tribunal has been unable to find any evidence to suggest that the applicant has any pending judicial reviews. The applicant spoke about how he was bashed by other detainees and how he has an eye problem now. He said for medical treatment they only give out Panadol.

10. He said he has a [qualification] and was working for a company on a 457 visa. He is owed around $63,000 plus superannuation and was kicked out of his job in December 2018. He then spent three months living with friends. He spoke briefly about how long he has been in detention, his convictions for sexual assault and the conditions in detention.

11. The Tribunal asked him why he withdrew his protection visa application and he said he was calling around to migration agents and lawyers and one of them told him to withdraw it. The Tribunal asked him what visa he was going to apply for, and he said he didn’t know he would need to talk to a lawyer or agent.

12. The applicant said he did return to India a few years ago and he does have a wife in India, but he hasn’t seen her in many years. He said he cannot return to India but did not elaborate.

13. The Tribunal asked him where he would live if he was released, and he said that he would live with his friend [Mr B] who is a [occupation] and that he had said would support him. The Tribunal asked him for a letter or statement from [Mr B] indicating this would be the case that he would live with him, and he would support him, however no letter/statement was received by the Tribunal. He also said that he would get financial support from his parents if needed.

14. The Tribunal asked him if he was released would he abide by any conditions on his visa and he said he would. He said he must report to the police once a year as he is a registered sex offender. Although the Tribunal discussed compliance of proposed conditions the Tribunal considers it unnecessary to decide this issue given its findings that the applicant does not meet the criteria for the visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Immigration status of the applicant - cl 050.211

15. Clause 050.211 is met if, at the time of application:

    (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

    (2)the applicant was not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). 

16. The applicant must continue to satisfy this criterion at the time of decision: cl 050.221. 

17. Accordingly, the applicant meets cl 050.211(1) as the applicant is an unlawful non-citizen in immigration detention and the applicant was not an eligible non-citizen as set out in the criteria therefore, the applicant meets cl 050.211(2). The applicant meets time of application criteria as at the time of this application the applicant had made a substantive visa application (protection visa). Therefore, the applicant meets 050.212(3).

    The grounds for seeking the visa - cl 050.212

18. 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.

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. In this case, the applicant is seeking to meet cl 050.212 (3). At the time of application, the applicant did meet cl 050.212 (3).

    Whether the applicant continues to satisfy the time of application criteria - cl 050.221

22. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl 050.211 and 050.212 at the time of decision. The Tribunal finds that at the time of decision, the applicant does not continue to satisfy cl 050.212 and therefore does not meet cl 050.221.

23. The applicant has no substantive visa application that has been made. He told the Tribunal that he was seeking legal advice as to what visa he could apply for and that he would get back to the Tribunal by the close of business on Monday 27 November 2023. He did not respond to the Tribunal by the close of business Monday 27 November 2023. The applicant did apply for a protection visa on 23 October 2023 then withdrew his application on 13 November 2023, and therefore he has no substantive visa application nor is the Tribunal satisfied that the applicant will apply for such a visa within a specified period.

24. Accordingly, the applicant does not meet 050.221 as the applicant does not meet the criteria in cl 050.212.

    Ministerial intervention

25. The applicant wrote an email to the Minister outlining that he has been in immigration detention since 20 March 2019, and that his 457 visa was cancelled. He further outlined in the letter that he was beaten in detention by two other detainees and has ongoing eye issues because of it. He stated that he does not want to return to India and that he is owed money by his former employer, he was convicted of sexual assault, and he is scared for his life as his crimes were on social media and its common for Sikhs to be hated by some religious groups in Australia.

26. Subclause 050.212(5B) is met if the applicant is a person to whom s 48A of the Act applies, and the applicant has made a request to the Minister to determine under s 48B that s 48A does not apply. There must not have previously been such a request under s 48B in relation to the applicant, or a request to the Minister for the exercise of the Minister’s power under ss 345, 351 or 417 of the Act.

27. Subclause 050.212(6) is met if the applicant is the subject of a decision that relates to a visa application made in Australia, or a visa cancellation and has made a request to the Minister to substitute a more favourable decision under ss 345, 351 or 417 of the Act. The decision in question must be a decision for which the Minister has the power to substitute a decision under ss 345, 351 or 417, and there must not have previously been such a request, or a request for a determination under s 48B of the Act. _

28. Subclause 050.212(6AA) is met if the Minister has substituted a decision under ss 345, 351 or 417 of the Act, but the visa has not been granted because of a visa cap in operation under s 85 of the Act.

29. Subclause 050.212(6B) is met if the applicant has an outstanding request to the Minister under ss 345, 351 or 417 of the Act made before 1 July 2009, and holds, or has held, a Bridging E visa granted before 1 July 2009 on the basis of the applicant meeting cl 050.212(6A) or, for visa applications made on or after 14 September 2009, cl 050.212(6) or (6A).

30. The applicant has not satisfied the criteria for seeking Ministerial Intervention under s417, 48B, 195A or 197AB.

31. Accordingly, the applicant does not meet cl 050.212(5B)(6)(6AA) or(6B).

32. The Tribunal has not assessed the applicant against cl 050.224 or 050.225 as they do not apply to the applicant as an authorised officer has not required a security be lodged and the applicant is not required to satisfy public interest criteria 4022.

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

34. The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant is not a relevant eligible non-citizen as set out in cl 051.211 of Schedule 2 to the Regulations and therefore does not meet the requirements for the grant of that visa.

    DECISION

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

    Nora Lamont
    Member