Arumugam (Migration)

[2019] AATA 483

Arumugam (Migration) [2019] AATA 483 (21 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nathan Kumar Arumugam
Ms Komala Kanniappan

CASE NUMBER:  1806997

DIBP REFERENCE(S):  CLF2017/121258

MEMBER:Jason Pennell

DATE:21 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 21 February 2019 at 9.39am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – not interviewed by authorised officer – applicants left Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 426
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.222

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 Immigration on 1 March 2018 to refuse to grant the visa applicant a Bridging E (Class WE) Subclass 050 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for a Bridging Visa E (BE) on 13 December 2017. The applicants were required to attend an interview for the purposes of their BVE application on 15 December 2017. The interview was rescheduled at the request of the applicant to 18 December 2017 (‘the rescheduled interview’).  The applicant did not attend the rescheduled interview.

3. As a result the delegate refused to grant the visa on the basis that on the basis that they failed to meet the requirements of clause 050.222 in schedule 2 of the Regulations as the applicants had not been interviewed by an authorised officer and subclauses 050.222(2), (3) and (4) do not apply.

4. 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 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.212.

5. The applicants were invited to appear at a hearing on 19 December 2018. By an email dated 10 December 2018 the applicants advised the Tribunal that they had returned to Malaysia and that they would not be attending the hearing. As a result on 11 December 2018 the Tribunal wrote to the applicants inviting them to advise the Tribunal by 17 December 2018 if they were to attend the hearing by telephone or otherwise withdraw their application. The Tribunal has not received any correspondence from the applicants in response to its letter. As a result there was no appearance by the applicants at the hearing on 19 December 2018.  

6. Pursuant to s.426 of the Act where an applicant is invited to appear before the Tribunal and dos snot do so, the Tribunal may proceed to make a decision on the application without taking further action.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether or not the applicant was in breach of clause 050.222 in Schedule 2 of the Regulations.

Applicant has been interviewed by an officer – Clause 050.222

(1)  Unless subclause (2), (3) or (4) applies, the applicant has been interviewed by an officer who is authorised by the Secretary for the purposes of this clause.

(2)  This subclause applies if:

(a)     the applicant is not in immigration detention; and

(b)     the applicant has made a valid application for a substantive visa; and

(c)     the applicant holds a Bridging E (Class WE) visa; and

(d)   the applicant is not seeking to be granted a further Bridging E (Class WE) visa that is subject to conditions other than those that apply to the Bridging E (Class WE) visa that the applicant currently holds.

(3)This subclause applies if:

(a)     an officer who is authorised by the Secretary for the purposes of this clause was not available to interview the applicant:

(i)  at the time of application; or

(ii)  if the bridging visa could be granted under regulation 2.21B, at the time of decision; and

(b)     the applicant is not in immigration detention; and

(c)     the applicant has made a valid application for a substantive visa; and

(d)     the applicant has previously held, but does not currently hold, a Bridging E (Class WE) visa.

(4)  This subclause applies if the applicant is a person:

(a)     to whom subclause 050.212(4AAA) applies; or

(b)     to whom subclause 050.212(4AB) continues to apply.

1. Clause 050.222(2) is not applicable as the applicants did not hold a BVE at the time of their application. In addition clause 050.222(3) is not applicable as the officer authorised by the Secretary was available to interview the applicants.

2. The Tribunal is satisfied that the applicants do not meet the requirements in clause 050.222 in Schedule 2 of the Regulations because they have not been interviewed by an authorised officer and subclauses 050.222(2), (3) and (4) do not apply.

The grounds for seeking the visa - cl.050.212

1. 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.

2. The Tribunal has considered if the applicant meets the requirements of subclause (2), (3), (3A), (4), (4AA),(4AAA), (4AB), (5), (5A), (5B), (6AA), (6A), (6B), (7), (8) or (9).

3. For the reasons below, the applicant does not meet cl.050.212.

4. Clause 050.212(4AAA) states:

   An applicant meets the requirements of this subclause if the applicant has applied for

   (a)  a declaration from a court that the Act does not apply to the applicant;

   (b)  judicial review or merits review of a decision made in relation to the applicant under the Australian Citizenship Act 2007 ;

   and the proceedings for the declaration or review have not been completed.

5. In this case clause 050.212(4AAA) does not apply to the applicants as they do not have judicial or merits review matters pending in relation to citizenship and they are not awaiting a declaration form a court that the Act does not apply to the applicant . Subclause 050.212(4AB) does not apply as they are not a member of the immediate family of a person who meets the requirements of subclause (4AAA); or a brother or sister who has turned 18, of a person who; (i) meets the requirements of subclause (4AAA); and (ii) has turned 18.

6. In addition 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.

7. ‘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 application being made: s.5(9) of the Act.

8. In this case by an email dated 10 December 2018, the applicants advised the Tribunal that they would not be attending the hearing on 19 December 2018 because they had left Australia and returned to Malaysia. 

9. Accordingly, the applicant does not meet cl.050.212(3) and as such the applicants do not satisfy the criteria required to grant a Bridging Visa.

10. The Tribunal has considered if the applicant meets the requirements of subclause (2), (3A), (4), (4AA), (4AB), (5), (5A), (5B), (6), (6AA), (6A), (6B), (7), (8) or (9) and finds that they do not apply to the applicants situation or circumstances and are not relevant to thier Bridging Visa application.

CONCLUSION

1. For these reasons, the applicants do not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

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

DECISION

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

Jason Pennell
Member