2414855 (Migration)

[2024] AATA 2230

2414855 (Migration) [2024] AATA 2230 (19 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2414855

MEMBER:James Silva

DATE:19 June 2024

PLACE OF DECISION:  Sydney

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

Statement made on 19 June 2024 at 5:33pm

CATCHWORDS   
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicant was convicted of criminal offences – applicant departed Australia – no longer onshone –decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 73, 359

Migration Regulations 1994, Schedule 2, cls 050.211, 050.212

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) .

2. The applicant applied for the visa on 28 May 2024. 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 050.211 (the applicant’s immigration status) and cl.050.212.

3. The decision to refuse to grant the visa was made on 30 May 2024 on the basis that the applicant did not meet any of the subclauses of cl.050.212 (‘primary criteria’) at the time of application. Following the applicant’s departure from Australia on [date] June 2024, the issue now is whether he has the migration status for the grant of a Bridging E visa.

4. For the following reasons, the Tribunal has concluded that the matter should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is currently whether the applicant meets cl.050.211 at the time of decision: cl.050.221.

6. 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). 

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

   Background

8. The applicant is a [age]-year-old Pakistan national. He first arrived in Australia on [date] September 2015 as the holder of a student visa (subclass 573).[1]

   §  He was granted two further student visas, a subclass 500 visa on 11 October 2019 and a subclass 500 visa on 15 December 2022, valid to 15 March 2025.

   §  The applicant was convicted of criminal offences on 19 May 2023, resulting in the cancelation of his student visa on 15 June 2023.

   §  On 17 June 2023, Australian Border Force (ABF) officials detained the applicant under s.189, following his release from criminal custody.

   §  On 12 August 2023, the applicant applied for a protection visa. The Minister’s delegate refused the application on 7 September 2023. The applicant applied for review of that decision, but on 8 November 2023 the Tribunal (differently constituted) found that it did not have jurisdiction as the review application was made out of time. That application is now finally determined.

   §  There are two previous applications for a Bridging E visa: (a) an application dated 26 June 2023, which was refused on 29 June 2023; and (b) an application made in association with the protection visa application which the Department refused on 17 August 2023, and the Tribunal (also differently constituted) affirmed on 30 August 2023,

   §  The applicant lodged the current Bridging E visa application on 28 May 2024. The Minister’s delegate refused the application on 30 May 2024, on the basis that the applicant did not satisfy cl.050.212, as he did not meet any of the requirements of the subclauses (the ‘primary criteria’), at the time of application.

   §  The applicant lodged an application for review of that decision on 2 June 2024 (the current application).

   [1] The applicant’s migration history is set out in the delegate’s decision record of 30 May 2024, a copy of which the applicant provided to the Tribunal with his application for review.

9. On 4 June 2024, the Tribunal invited the applicant via email to appear before it to give evidence and present arguments at a hearing on 11 June 2024.

   §  Shortly after dispatch of the Tribunal’s letter, the applicant replied advising that he was due to be removed later that day, without his consent.

   §  An ABF officer advised the Tribunal at 10:11am that the applicant was no longer onshore.

   §  Department movement records confirmed that the applicant had departed that morning.

   §  The Tribunal wrote to the applicant under s.359A inviting his comments/response to information that he had departed Australia, and could therefore no longer satisfy cl.050.211 at the time of decision (cl.050.221). He was invited to provide his comments/response in writing by 18 June 2024.

   §  The Tribunal cancelled the hearing invitation for 11 June 2024, and invited the applicant to a hearing by telephone (or video link) on 20 June 2024. (The Tribunal considered the possibility of changing the hearing mode for the 11 June 2024 hearing from an in-person hearing to a telephone or video hearing, given the applicant’s return to Pakistan. However, it concluded that this was unreasonable, as it would have required the applicant’s participation at 5:00am Pakistan time.)

   §  The Tribunal alerted the applicant in the s.359A letter that if he did not reply to the s.359A letter (i.e. not provide written comments or response, or request an extension of time), the hearing on 20 June 2024 would not proceed.

10. The applicant did not reply to the Tribunal’s s.359A letter. The Tribunal advised the applicant that the hearing on 20 June 2024 would not proceed, and that it would proceed to a decision on the matter after 5:30pm on 19 June 2024. There was no acknowledgement or reply.

    Migration status at time of application: cl.050.211

11. As noted in the delegate’s decision record, the applicant was an unlawful non-citizen at the time of application (cl.050.211(1)(a)), and that he was not an eligible non-citizen of the kind set out in sub-regulation 2.20(7), (8), (9), (10), (11), (17) or (18) (cl.050.211(2)).

12. Accordingly, the applicant meets cl.050.211(1), and cl.050.211.

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

13. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl 050.211 and 050.212 at the time of decision.

14. Following his departure from Australia on [date] June 2024, the applicant no longer met cl.050.211(1)(a). Section 14 of the Act defines an unlawful non-citizen as a ‘non-citizen in the migration zone […]’, which no longer applies to the applicant. The applicant did not hold a Bridging E visa, or a Subclass 041 visa at the time of application.

15. The Tribunal finds that the applicant does not continue to satisfy cl.050.211, and therefore does not meet cl.050.221.

    Conclusion

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

17. 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

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

    James Silva
    Member