AFR21 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 929
•17 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AFR21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 929
File number(s): SYG 141 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 17 June 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant bridging visa – whether earlier protection visa application finally determined – whether earlier application for judicial review of protection visa refusal decision not finally determined – application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 417, 476
Migration Regulations 1994 (Cth) cls 050.211(2), 051.211 of Sch 2
Cases cited: Al-Mamun v Minister for Immigration & Multicultural Affairs [2000] FCA 1058
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
VFAY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 14
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of hearing: 19 May 2025 Place: Parramatta Applicant: Appeared in person Solicitor for the Respondents: Ms K Pieri from Minter Ellison ORDERS
SYG 141 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AFR21
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
17 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs in the sum of $5,900.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 27 January 2021, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 23 December 2020. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Bridging E (Class WE) (subclass 050 or 051) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
LEGISLATION
At the time the applicant applied for a Bridging E (Class WE) visa, Class WE contained two subclasses — subclass 050 and 051.
In relation to a subclass 050 visa, cl 050.211(2) (located in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations)) required that the applicant “is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17)”.
Each of reg 2.20(7), (8), (9) and (10) only applied to a non-citizen if, pursuant to subparagraph (b) of each subregulation:
(i)the non - citizen made a protection visa application that is not finally determined; or
(ii)the non - citizen applied for judicial review of a decision to refuse a protection visa; or
(iii)the Minister has applied for judicial review of a decision in relation to the non - citizen's protection visa application;
Regulation 2.20(17) provided:
This subregulation applies to a non - citizen if:
(a) the non - citizen is an unlawful non - citizen; and
(b) section 195A of the Act is not available to the Minister in relation to the grant of a visa to the non - citizen; and
(c) the Minister is satisfied that the non - citizen's removal from Australia is not reasonably practicable at that time.
In relation to a subclass 051 visa, cl 051.211 required that an applicant “is an eligible non-citizen referred to in subregulation 2.20(7), (8), (9), (10) or (11)”.
FACTUAL BACKGROUND
In March 2013, the applicant, a citizen of Bangladesh, arrived in Australia as an unauthorised maritime arrival.
On 7 June 2019, the applicant applied for a bridging E visa on the basis that the applicant was seeking “Ministerial intervention”.
On 12 June 2019, a delegate of the first respondent refused the application on the basis that the applicant did not meet cl 050.211 or cl 051.211 of Schedule 2 to the Regulations.
On 26 June 2019, the applicant applied to the Tribunal for review of the delegate’s decision.
On 12 November 2020, the Tribunal invited the applicant to appear at a hearing on 22 December 2020 to give evidence and present arguments.
On 22 December 2020, the applicant appeared before the Tribunal to give evidence and present arguments, with the assistance of an interpreter and his representative.
On 23 December 2020, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a bridging E visa.
TRIBUNAL’S DECISION
The Tribunal at [8]-[27] considered whether the applicant satisfied cl 050.211(2) of Schedule 2 to the Regulations. The Tribunal at [25] found “that the applicant is a person to whom r 2.20(17) applied at the time of application”. Since cl 050.211(2) was satisfied only if the applicant was not a person to whom any of r 2.20(7), (8), (9), (10), (11) or (17) applied, and the applicant was a person to whom r 2.20(17) applied, it followed that, as found by the Tribunal at [26] and [27], the applicant did not satisfy cl 050.211(2) and therefore did not satisfy the criteria for a subclass 050 bridging visa.
The Tribunal at [29] considered whether the applicant satisfied cl 051.211 of Schedule 2 to the Regulations. The Tribunal at [24] found that “having regard to the applicant’s evidence that he has no proceedings seeking protection or seeking to review his application for protection, the applicant cannot satisfy r 2.20(7)-(11) inclusive, in particular subparagraphs (b)(i) and (ii) in each subregulation”. It followed that, as found by the Tribunal at [29], the applicant was not a relevant eligible non-citizen as set out in cl 051.211 of Schedule 2 to the Regulations and therefore did not satisfy the criteria for a subclass 051 bridging visa.
PROCEEDINGS IN THIS COURT
Judicial review application and steps up to hearing on 19 May 2025
On 27 January 2021, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. The application contained two grounds as follows (reproduced as written) (Application):
Ground One:
The Authority fell into error by making factual assumptions and conclusions that were not supported by evidence and by failing to articulate the circumstances under which an undocumented person can be returned to the Receiving Country.
Ground Two:
The Authority fell into error by failing to deal with an integer of the Applicant’s claims leading to a failure to exercise jurisdiction.
Following a period of inactivity, on 3 April 2025 the parties were notified by the registry of the Court that the matter was listed for hearing on 19 May 2025.
On 6 May 2025, the first respondent filed a written submission.
Hearing on 19 May 2025
At the hearing on 19 May 2025, the applicant appeared in person, assisted by a Bengali interpreter. Kerrie Pieri from Minter Ellison appeared for the first respondent.
The applicant brought to the hearing the Court Book filed by the first respondent in April 2021 which contained the Tribunal’s decision and documents before the Tribunal. At the commencement of the hearing, I directed the applicant’s attention to the Tribunal’s decision. I explained that the Court’s role was limited to considering whether or not there was a jurisdictional error, which I described as a significant error or mistake, in the Tribunal’s decision. With reference to the Tribunal’s decision, I explained the main categories of jurisdictional error. I explained that, for the applicant to win the Court proceeding, he must persuade the Court there is a jurisdictional error in the Tribunal’s decision.
I offered the applicant a 10-minute break to consider oral submissions he wanted to make to the Court. The applicant took up this opportunity.
Following the break, Ms Pieri tendered the Court Book (CB).
The applicant handed up a typed submission which appeared from its content to have been prepared by a lawyer familiar with judicial review proceedings under the Act. The applicant gave a copy of the submission to Ms Pieri for the first time a few minutes before the commencement of the hearing.
The applicant then made oral submissions. He stated that the claims he made to the Tribunal were true and he does not understand why the Tribunal did not believe him. He stated that, if he returns to Bangladesh, his life is at risk. He stated that he has lived in Australia for 12 years, and Australia is his country.
CONSIDERATION
Grounds 1 and 2 in Application
Grounds 1 and 2 are generic and devoid of particulars. A “failure to particularise a ground of review is itself a sufficient basis to dismiss it”: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37].
Applicant’s written submission handed up at hearing
It appears from documents in the Court Book that in July 2013 the applicant applied for a protection visa (CB 68), in September 2014 a delegate of the first respondent refused to grant a protection visa (CB 68), in June 2016 the Tribunal made a decision affirming the delegate’s decision (CB 67), in July 2016 the applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision (CB 84), in August 2018 the Federal Circuit Court dismissed the application (CB 85), in September 2018 the applicant appealed to the Federal Court (CB 86), in February 2019 the Federal Court dismissed the appeal (CB 87), in March 2019 the applicant filed an application in the High Court (CB 88), and on 15 May 2019 “the High Court dismissed the application for judicial review” (CB 90). It appears from the Tribunal’s decision at [24] that, consistent with the documentary evidence stating that the applicant’s High Court application was dismissed on 15 May 2019, the applicant gave oral evidence to the Tribunal on 22 December 2020 “that he has no proceedings seeking protection or seeking to review his application for protection”.
The Tribunal stated at [24]:
Having regard to the applicant’s evidence that he has no proceedings seeking protection or seeking to review his application for protection, the applicant cannot satisfy r 2.20(7)-(11) inclusive, in particular subparagraphs (b)(i) and (ii) in each subregulation.
The Tribunal at [24] effectively found that, in relation to subparagraph (b) of each of reg 2.20(7), (8), (9) and (10) (see paragraph 5 above), the applicant was neither a person who “made a protection visa application that is not finally determined” within the meaning of (b)(i) nor a person who “applied for judicial review of a decision to refuse a protection visa” within the meaning of (b)(ii).
In relation to the Tribunal’s finding at [24] concerning (b)(ii), the reasoning in VFAY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 14 (VFAY) supports a reading of sub-paragraph (b)(ii) as concerning an application “for judicial review of a decision to refuse a protection visa” which is “on foot” (VFAY at [19]) or which “had not been determined” (VFAY at [20]).
It is stated in the applicant’s written submission:
The Minister has submitted that because the applicant’s protection visa application and all associated judicial review avenues had concluded by 15 May 2019 – the date the High Court refused special leave – the subsequent application for a bridging visa on 7 June 2019 was invalid as there was no ongoing proceedings.
…
The Tribunal failed to adequately consider the proximity of events. The bridging visa application was made on 7 June 2019 – just 23 days after the refusal of special leave by the High Court on 15 May 2019. This minimal time gap is significant … The Tribunal’s narrow focus on the lack of ongoing proceedings failed to consider the substance of the applicant’s conduct and the continuing need to resolve his immigration status …
…
Even after judicial review processes are exhausted, applicants remain entitled to seek Ministerial intervention under s 417 of the Migration Act … At the time the applicant lodged the bridging visa application, he was not disengaged from the immigration process. Rather, he remained lawfully present and had a continuing interest in seeking Ministerial consideration or other regularisation options. The Tribunal failed to consider this context altogether.
The applicant’s argument appears to be that, at the time the applicant applied for a bridging E visa on 7 June 2019, it was possible the applicant could seek Ministerial intervention under s 417 of the Act “or other regularisation options”, and therefore his protection visa application was “not finally determined” or, on application of VHAY, was still “on foot”.
I do not accept this argument. As recorded by the Tribunal at [24], the applicant’s evidence before the Tribunal was that the “[applicant] has no proceedings seeking protection or seeking to review his application for protection”, including any judicial review proceeding in a federal court. It followed that the applicant did not satisfy (b)(i) or (ii). That the applicant could make a request to the Minister under s 417 of the Act, which step the applicant had not taken by 7 June 2019, did not mean that the applicant satisfied (b)(i) or (ii).
For the above reasons, the applicant’s written submission does not identify a jurisdictional error in the Tribunal’s decision.
Oral submissions at hearing
At the hearing before the Court on 19 May 2025, the applicant made oral submissions to the effect that he disagreed with the Tribunal’s decision, and he wanted to stay in Australia. These submissions, obviously, do not identify a jurisdictional error in the Tribunal’s decision.
It follows from the above that the applicant has not identified a jurisdictional error in the Tribunal’s decision. The application to this Court must be dismissed.
COSTS
At the conclusion of the hearing, the Court invited submissions from the parties on costs. Ms Pieri sought an order that the applicant pay the first respondent’s costs in the sum of $5,900, which was less than the first respondent’s solicitor/client costs. I consider this amount is reasonable. The applicant stated that he was unable to pay this amount. However, I consider that indigence of a losing applicant who, by making and progressing the application to hearing, has forced the respondent to incur legal costs does not affect a determination of an amount which is reasonable in the present matter: see Al-Mamun v Minister for Immigration & Multicultural Affairs [2000] FCA 1058 at [5]. I will make an order for costs in the amount sought by Ms Pieri.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 17 June 2025
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