Brooks (Migration)

Brooks (Migration) [2023] AATA 2815 (10 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Ms Christina Suzanne Brooks
CASE NUMBER:  2309470
Home Affairs REFERENCE(S):               BCC2023/3596350
MEMBER:Namoi Dougall
DATE:10 July 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 10 July 2023 at 7:16pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – period of unlawful residence – applicant convicted of several offences – credibility issues – failing to report on bail – acceptable arrangements to depart Australia – application for a substantive visa – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 48, 73, 85, 189, 351
Migration Regulations 1994, Schedule 2, cls 010.211, 050.212, 050.221, 051.211

CASES

Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283

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

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).
The applicant applied for the visa on 26 June 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 matte are the primary criteria in cl 050.212.
The decision to refuse to grant the was made on 29 June 2023 on the basis that the delegate was not satisfied that the applicant met any of the requirements of cl.050.212.
The applicant appeared before the Tribunal on 6 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Alexander John Newnham. The Tribunal will refer to Mr Newnham either by his name or the applicant’s partner throughout the decision.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is whether the applicant meets the primary criteria in cl.050.212.

Applicant’s migration and criminal history

On 2 November 2018, the applicant has entered Australia on Subclass 601 visa granted offshore on 20 October 2018, which was valid until 13 December 2019. The applicant entered and departed Australia a number of times on this visa. A second Subclass 601 visa was granted to the applicant offshore on 23 September 2019 which was valid until 13 December 2019 and the applicant entered Australia on that visa on 24 September 2019.
On 13 December 2019 and 15 May 2020, the applicant was granted onshore Subclass 600 visas, the last of which was valid until 24 September 2020.
On 1 April 2021, the applicant was granted a Bridging C visa which was valid until 11 April 2023. After the Bridging C visa ceased, the applicant remained in the community as an unlawful non-citizen until located by Australian Boarder Force (ABF) officers on 26 June 2023 and detained pursuant to sec.189(1) of the Act.
On 16 December 2022, the applicant was convicted of possession of Prohibited Drug (Methyamphetamine) and fined $200. The applicant was also convicted of possession of drug paraphernalia containing prohibited drug/plant and fined $100 and issued an order for destruction.
The applicant has been charged with the following offences:
· 7 June 2023, Gains Benefit by Fraud
· 20 March 2023, Steal Motor Vehicle
On the Department’s file is a document which lists in detail the applicant’s charges, convictions, alerts and warnings including statements of material facts and other information (the offences’ summary).
Recorded in the offences’ summary, in relation to the charge made on 20 March 2023, the applicant was released on bail on the condition that she report to the Wanneroo Police Station every Wednesday between 8:00 am and 4:00 pm. On Wednesday, 10 May 2023, the applicant did not report, and when she was contacted, she stated that she had been unable to report as she had COVID-19 and she was advised to provide a medical certificate.
It was further recorded in the offences’ summary that on 15 May 2023, the applicant was contacted as no medical certificate had been provided. A medical certificate from ‘Instant script’ was immediately emailed to the police station. After further investigation it was discovered that the script had been altered and cropped, and the actual date it was issued was 14 April 2023.
On 26 June 2023, the applicant was interviewed at Joondalup police station and her responses and other information was recorded in the Field Operation Locate Person Interview (location interview) Form, and were as follows:
·    The applicant had an expired passport in her possession.
·    Her last addresses were from December to March 2023 in a share house in [Town 1], Western Australia (WA) but she does not know the address. Then since March 2023 at [Address 1 in] WA with three other people.
·    The applicant was divorced in 2021. Her current partner is Alexander Newnham who provides her with support, but they are not living together.
·    When asked how much money she has in Australia, the applicant said she has $400 in her account. Her rent is $110 per week.
·    When asked if she intended to apply for an Australia visa, the applicant stated a partner visa maybe, and that she would leave if she had no other option. She would leave voluntarily, and her mother will purchase and airline ticket.
It was further recorded in the location interview that the applicant was located at Joondalup Magistrates court, after having been charged with the offences that are listed above. The officer provided a number of reasons why the officer was not able to grant Bridging visa at that time.
On 28 June 2023, the applicant was interviewed whilst in immigration detention (the detention interview). The applicant is recorded as having stated the following at her detention interview:
·    The applicant will gather up her documents and apply for a Partner visa as she has been in a relationship with Mr Newnham for 4 years.
·    She has $470 in savings but when it was explained that this is not enough to apply for a partner visa, she stated that her partner will pay for a visa application. The applicant stated that her partner has around $10,000 and is a FIFO.
·    When asked why she had not already applied for a partner visa while in the community for 4 years, the applicant stated that they had been advised more time was needed to be eligible.
·    When asked about the contradiction between the applicant providing a valid passport to apply for a Bridging visa and her advising ABF officers when detained that her passport expired, the applicant stated that she had told the officers that she did not know the whereabouts of her valid passport, but her partner had now found the passport.
·    When asked about her convictions, the applicant claimed that they pent convictions and she is not guilty of the charges she is facing. She clarified that it was her partner who stole the car, and she was not involved, and she did not know the car was stolen.
Evidence given at hearing
At the hearing, the applicant stated that she will be lodging a partner visa application and she has started the process by collating requirement documentation. The applicant also stated that she has started to complete the application form online and to check what documents she is required to provide. When asked why she did not apply earlier as she has stated that she has been in a relationship since shortly after she arrived in Australia, the applicant stated that she needed to be in Australia for 4 years to be a resident and she reached four years in June 2023. In the beginning, the applicant wanted to gain residency on her own without her partner, but she was poorly advised, and it was better to apply for partner visa. She was confused about the four years as she found that requirement from looking at the Department’s website as to permanent residency, and she thought she needed to be in Australia for 4 years. The Tribunal asked the applicant to provide a copy of a screenshot of the incomplete online application which the applicant agreed to do so, although at the end of the hearing the Tribunal indicated that this may not be sufficient to establish that an application will be lodged.
At the hearing, the applicant stated it was October 2018 that she met Mr Newnham online. Their relationship stated when they met in person in November 2018. The applicant started to live with Mr Newnham on 28 June 2019 and she lived with him until about 6 months ago as he is staying with his father, who has had a double knee replacement.
At the hearing, Mr Newnham stated that he met the applicant online in September 2019 and met her in-person in October 2019. They started to live together around June or July 2019. The Tribunal asked if they had lived together throughout that period and Mr Newnham said until March 2023 when he had a court case, and a bail condition was that he had to live with his father in Carramar a suburb of Perth. Later, the Tribunal asked the applicant about the contradiction in what the applicant and Mr Newnham had stating as to why he was living with his father. The applicant stated that originally his bail condition was that he lived with his mother but subsequently the address was changed as his mother was to travel overseas.
At the hearing, Mr Newnham stated that he intended to lodge a partner visa application for the applicant and that they had a saved application partly filled out. They have not completed the application as they want to engage a migration agent to look at the application before they lodged it. The Tribunal asked why the partner application had not been lodged already and Mr Newnham stated that in August 2022, he lost a third of his middle finger on his dominant hand which led to unemployment as he is a qualified heavy diesel mechanic, and he was unable to continue with his trade.
At the hearing, the Tribunal read the conditions that the Tribunal would consider when applying to any Bridging visa. The Tribunal asked if the applicant had been working while in Australia and she stated that she has not been working in Australia and has been fully supported by her partner. The Tribunal referred to partner visas, maybe taking years to be assessed, and the applicant confirmed that her partner would be able to support her for the length of time a partner visa would take to be decided. The applicant stated that Mr Newnham is a heavy diesel mechanic working FIFO, however, currently he is in Perth as he is starting his own mechanical business in Perth. When asked if he had to attend court in relation to criminal convictions, the applicant stated that she believes he is in session for criminal convictions, but she is not aware of what his convictions are for. The applicant confirmed that she is aware that he was arrested.
At the hearing, the Tribunal asked the applicant about being charged with fraud. The applicant stated that she has a charge for stole motor vehicle and the other charge is for fraud. The fraud conviction happened at the time her brother suffered a bad accident, and she was informed that he may not make it, so she was so distressed she slept for a week and, therefore, she missed reporting for bail. She sent a medical certificate; however, she sent the wrong one, so she then went to an actual doctor who wrote a medical certificate after she explained her circumstances. The applicant stated that she went to court the following Monday and had the physical medical certificate with her, and her solicitor handed the medical certificate to the magistrate. At the same hearing, she told the magistrate of a change of address.
At the hearing, the applicant stated that on the following Thursday, the police came to her home and arrested her as she had forgot her bail conditions had changed and that she now needed to report on Wednesday. It was her fault and her mistake as she was moving houses, and she forgot because it was one of those days and she was all over the place. She did not realise that she had forgotten to report until 12:30 am that night. The police arrested her for breaching bail and that she had turned in a fraudulent medical certificate even though she had the physical copy of the doctor’s medical certificate. When asked if she had provided the doctor who provided the medical certificate any proof of her brother’s accident, the applicant stated that she had shown the doctor the text messages from her mother. The applicant denied having spoken to the police as to why she had missed reporting as part of her bail conditions. This is in contradiction with the offences’ summary.
At the hearing, the Tribunal asked if the applicant provided a full copy of the online medical certificate to the police and the applicant stated that she had provided the physical certificate in relation to missing bail. The Tribunal asked again about the online medical certificate and the applicant confirmed that she provided the full medical certificate in May or June 2023. The Tribunal asked for copies of both medical certificates.
The Tribunal explained the importance of her being a credible witness. The Tribunal read the offence’s statement in relation to the applicant failing to report, including that the applicant had spoken to the police and told them that the reasons she did not report was because she had COVID-19, and that the online medical certificate had been tampered with.
At the hearing, the applicant stated that there were two times she did not report for bail. She did have COVID-19, and she did report to WA Health online, wahealth.org, and this was about the time that her brother had his motor accident. The applicant found out she had COVID-19 when she completed a RAT test on Monday 8 May 2023, and then reported it on wahealth.org and received a text. The Tribunal asked for applicant to find the text. The applicant took out her phone and searched it for a moment, and then stated that she believes it is not on the phone she has with her, but on her other phone which she had broken. The applicant confirmed that even though she had broken her phone, she can still send the Tribunal the screenshots requested.
At the hearing, the applicant stated that was her mother informed her of her brother’s car accident on 6 or 7 May 2023.
At the hearing, the Tribunal stated that failing to report twice as part of her bail conditions is an important consideration when the Tribunal is considering whether or not she will abide by conditions. The applicant stated that it was her mistake, and she spent a night in the watchhouse so since then she has set 17 alarms to make sure she reports and does not miss reporting.
At the hearing, the applicant stated that her residential address would be [Address 1].
In relation to condition 8564, the applicant stated that it was her partner who stole the vehicle. She thought he had rented the vehicle through Facebook Market Place as this is what he used to do. She was not affected by drugs during the time that led to the charge. The Tribunal read what was set out in the offences’ summary including that the applicant’s phone indicated that she was aware that the vehicle was stolen. The applicant stated that her partner has two motor vehicle charges and her comments on the phone were relating to the first stolen vehicle charge and not the first. She admits driving the vehicle extensively and she would not have done so if she thought the vehicle had been obtained illegally.
At the hearing, the Tribunal asked how she would support herself if her partner went to gaol, and the applicant stated that she has flat mates, and also her partner has savings that could be used for her living costs. Her housemates are willing to help her in any way as they are aware of her situation. The applicant stated that she can also obtain financial support from her mother.
At the hearing, as referred to above, Mr Newnham stated that in August 2022, he lost a third of his middle finger on his dominant hand which led to unemployment as he is a qualified heavy diesel mechanic, and he was unable to continue with his trade. He is in the motion of getting back into work. The Tribunal asked for more information, and he stated that he has finished occupational therapy and he is waiting for a medical which will take place on 14 September 2023. with his old company which will assess how much the loss of his finger will impact his work and whether he will be employed again.
At the hearing, Mr Newnham stated he is on Centrelink benefits of $784 a fortnight, and he is applying for part time work. His applications have been successful, and his boss is a good friend who works in the Goldfields but will be permanently relocating to Perth in the next month. The applicant will be doing engine and component rebuilds as a heavy diesel mechanic. The Tribunal asked for information confirming his new job opportunity and the Tribunal was subsequently provided with his friends’ contact details.
At the hearing, the Tribunal then asked about his convictions and Mr Newnham stated that he has charges still to be dealt with by the courts for stole motor vehicle, a stealing charge and a burglary charge. In relation to all of those charges, he still has to attend court. When asked if he has any previous convictions, Mr Newnham stated they are only for traffic convictions. When asked if he has more than one charge for stealing a motor vehicle, Mr Newnham stated that the outstanding stole vehicle charge is the only time he has been charge with that offence.
At the hearing, the Tribunal explained that the applicant could not work and that it may take some time for partner visa to be approved. Mr Newnham stated he is willing to support the applicant. The Tribunal asked if he was able to support the applicant as he may have to serve a prison term and he stated he would be able to support her. If he serves time in imprison term, he has savings of around $13,000 which could support the applicant. In relation to a security for abiding by conditions, Mr Newnham stated that he would pay what is needed whether it was $1,000 or $5,000. The Tribunal asked if he would be able to meet a greater security and he stated the would be willing to put up to $13,000. The Tribunal explained that this would mean his saving would not be sufficient to support the applicant while they waited for the partner visa to be approved, as rent and living expenses need to be paid for the applicant as she cannot work. Mr Newnham stated he will build up his savings as he will start work next month.
At the hearing, Mr Newnham stated that he is back in court tomorrow and 20 July 2023. There are different dates as he is at different magistrate courts for different charges. Mr Newnham stated that he is sure that both dates are for sentencing. The Tribunal asked him to notify the Tribunal on the outcome of his sentencing. The Tribunal asked again about how much he was prepared to put forward as a security and he stated $10,000. Mr Newnham provided information that his court matter was adjourned for 4 weeks for the prosecuting officers to consider his lawyer’s submission to reduce the charges to stealing and trespassing.
At the hearing, after Mr Newnham had left the hearing, the Tribunal stated that there are contradictions in the applicant’s statements record on the file and what she has said at the hearing including the applicant stating that Mr Newnham has been charged twice for stealing a vehicle and that her comments on her phone were in relation to the first time even though Mr Newnham stated clearly that he did not have another stealing vehicle charge. The applicant stated that there are two charges, one he pleaded not guilty to and the other he pleaded guilty to. The Tribunal stated that this may mean he will be even less able to support her.

At the hearing, the applicant asked if the security had to be $20,000 or over and the Tribunal said an amount closer to that figure would be closer to what would be required and asked that she provide information as to how she would pay for that amount with the material she will provide tomorrow, 7 July 2023. The applicant did not provide any further information on any potential security.
On 7 July 2023, the Tribunal wrote to the applicant reminding her to provide all information by 12 noon on 10 July 2023.
On 7 July 2023, the applicant provided the information referred to above in relation to Mr Newham’s employer and the outcomes of his court hearing.
On 7 July 2023, the applicant provided a medical certificate dated 28 May 2023 (the physical medical certificate) which stated that the applicant attended with her partner and showed the doctor that she had registered a positive COVID-19 test on 16 May 2023. The doctor also stated that they gave the history of the applicant’s brother dying in a car accident at that time and that shock prevented her from engaging in daily activities including reporting on 10, 17 and 24 May 2023. The doctor stated that the applicant’s presentation was in keeping with the above.
There is a number of inconsistencies between the evidence on the Departmental file and what the applicant stated at the hearing, of particular concern is around why the applicant failed to report as part of her bail conditions.
As referred to above it was recorded in the offences’ summary, in relation to the charge made on 20 March 2023, that the applicant was released on bail on the condition that she report to the Wanneroo Police Station every Wednesday between 8:00 am and 4:00 pm. The applicant at the hearing stated that her bail conditions were changed so she was to report on Wednesdays which is inconsistent with the offences’ summary. It was further recorded that on Wednesday, 10 May 2023 the applicant did not report. When she was contacted, she stated that she had been unable to report as she had COVID-19 and she was advised to provide a medical certificate. On the evidence of the physical doctors certificate the applicant self-reported a COVID-19 test on 16 May 2023, 6 days after she had informed the police that she had COVID-19 and the day after the applicant had been followed up for the medical certificate. Of even more concern, the certificate the applicant provided to the police on 15 May 2023 was altered and cropped and had actually been obtained on 14 April 2023.
Further, although the applicant did provide the physical medical certificate to the Tribunal, the certificate refers to the applicant and her partner having given a history of her brother dying after a car accident, but the applicant stated at the hearing that she was told that he may not survive and did not state that he had died. The applicant also stated at the hearing that she showed the doctor screenshots of the mother’s text informing her he had died and stated that she could provide these screen shots to the Tribunal, so the Tribunal requested that they be provided. The Tribunal has not been provided with copies of the applicant’s mother’s texts.
On the above, the Tribunal is not satisfied that the applicant is credible in her claims as to why she did not report. The COVID-19 test was self-reporting, the physical medical certificate was obtained 18 days after she claimed to have had COVID-19, there are inconsistencies as to whether her brother was killed in a car accident and the applicant provided to the police an altered and cropped medical certificate dating nearly a month before she claimed to have had COVID-19.
The Tribunal is also concerned about the applicant’s evidence as to whether she knew that the car, which she and Mr Newnham were charged with stealing, was actually stolen. It is recorded in the offences’ summary that the applicant stated that her boyfriend had stolen the car and she was not aware the car was stolen. The applicant made a similar statement at the hearing. However, it was also recorded in the offences’ summary that the applicant was asked at the time of her arrest for her phone and information on the phone indicated that she was aware the car had been stolen. When this was read out to her at the hearing, the applicant stated that Mr Newnham had been charged with two offences of stealing a car and she was referring to the first offence on her phone. This contradicts Mr Newnham’s evidence that he has only been charged with one offence of stealing a car.
Other inconsistencies between the applicant’s statements at the hearing and what Mr Newnham stated include the inconsistent statements as to why Mr Newnham stopped living with the applicant around 6 months ago. Mr Newnham stated that the reason why he stopped living with the applicant and moved to live with his father, was due to his bail conditions while the applicant stated it was due to his father’s surgery and did not mention any bail conditions. Further, both gave different reasons as to why they had not lodged a partner visa application earlier.
The Tribunal asked the applicant to provide supporting information as to her brother’s accident and asked both the applicant and Mr Newnham to provide supporting evidence of the saved partially completed online partner visa application. This evidence has not been provided to the Tribunal.
On all of the above the Tribunal is not satisfied that the applicant is a credible witness.
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).
The applicant must continue to satisfy this criterion at the time of decision: cl 050.221.
The applicant’s last held visa, a Bridging C visa ceased on 11 April 2023, after which the applicant remained in the community as an unlawful non-citizen.
Accordingly, the applicant meets cl 050.211(1).
The applicant was not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). Accordingly, the applicant does not meet cl 050.211(2).
Therefore, the applicant meets cl 050.211.
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.
In this case, the applicant is seeking to meet cl 050.212 (2) and (9), however, the Tribunal has considered all of the requirements of cl.050.212. For the reasons below, the applicant does not meet cl 050.212.

Acceptable arrangements to depart Australia

Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The Departmental guidelines (PAM3), whilst not binding on the Tribunal, nevertheless provide some guidance: Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]).
The applicant stated in the Bridging E visa application that the reason she is applying is: application for a substantive visa; and departing Australia. As referred to below, at the hearing, the applicant stated that she will be lodging a partner visa application and that she has started the process by collating required documentation. The applicant also stated that she has started to complete the application form online, and to check what documents she is required to provide. Mr Newnham gave similar evidence. The applicant stated at the hearing that she would depart Australia, if she has no choice.
The applicant has not provided to the Department or Tribunal any information or evidence of having made acceptable arrangements to depart, such as the purchase of an airline ticket or enquires as to when flights would be available. The applicant and Mr Newnham’s evidence at the hearing is that they intend to apply for a partner visa and have started the application process. Despite her statement at the hearing that she would depart if she had no choice, without additional supporting evidence the Tribunal is not satisfied that the applicant has a genuine intention to depart Australia particularly as the Tribunal has found that the applicant was not a credible witness at the hearing.
For the above reasons, the Tribunal is not satisfied that at the time of application the applicant was making acceptable arrangements to depart Australia. Therefore, the applicant does not meet cl 050.212(2).

Substantive visa application

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.
‘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.
As referred to above the applicant has stated in the Bridging visa application that the reason she is applying is: application for a substantive visa; and departing Australia.
At the hearing, the applicant and Mr Newnham stated that they had started an online partner visa application which had been saved, however, despite the Tribunal requesting a screenshot of the saved online application, the screenshots have not been provided to the Tribunal. In light of the above and the Tribunal’s finding that the applicant is not a credible witness, the Tribunal would require supporting information that the applicant intends to lodge a partner visa application. In reaching this conclusion the Triubnal accepts that Mr Newnham has provided supporitn evidence of the applicant’s intention to lodge a partner visa application, however, despite providing oteh rrequested evidence Mr Newnham did not provide screeshots of the online saved application. Therefore, the Triubnal places little weight on Mr Newnham’s supporting statements. Further, the applicant and Mr Newnham gave different reasons as to why they had not lodged a partner application earlier.
On the above, the Tribunal is not satisfied that the applicant intends to apply for a partner visa.
Accordingly, the applicant does not meet cl 050.212(3).

Judicial review – onshore substantive visa refusal

Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.
Subclause 050.212(4) is met if:
Judicial review – substantive visa decision (other than refusal)
(a)the applicant has applied for judicial review of a decision in relation to a substantive visa (other than a decision to refuse the visa); or
(aa)the Minister has applied for judicial review of a decision in relation to the applicant’s substantive visa application (other than a decision relating to refuse the visa); or
Visa cancellation – merits review / s 137K revocation
(b)the applicant has applied for merits review of a decision to cancel a visa; or
(ba)the applicant has applied under s 137K for revocation of the cancellation of a visa; or
(bb)the applicant has applied for merits review of a decision under s 137L not to revoke the cancellation of a visa; or
(c)the Minister (or Tribunal) is satisfied that the applicant will make an application of a kind referred to in cl 050.212(4)(b), (ba) or (bb)
Judicial review – validity of a law
(d)the applicant has applied for judicial review of the validity of a law that affects their eligibility to apply for a substantive visa or their entitlement to be granted or continue to hold a substantive visa.

Judicial review – member of the family unit

Subclause 050.212(4AA) is met if the applicant is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in cl 050.212(3A)(b), (4)(a), (4)(aa) or (4)(d), that other person is not a party to a representative proceeding, and the applicant made a combined substantive visa application with that other person’s application.

Judicial review – Class BC or BI visa refusal

Subclause 050.212(9) is met if a decision to refuse the applicant (or a member of the family unit who has made a combined application) a Class BC or BI visa is the subject of valid judicial review proceedings that have not been completed, and the applicant (or member of the family unit) does not satisfy cl 010.211(6)(c) for the grant of a Bridging A (Class WA) visa.
There is no information or evidence on the applicant’s files nor has the applicant made any claim that indicates that the applicant or a member of her family have has sought judicial review for any visa decision or cancellation.
Accordingly, the applicant does not meet cl 050.212(3A), (4), (4AA) or (9).

Consequential cancellation (review/revocation of primary cancellation)

75. Subclause 050.212(5) is met if the applicant held a visa that was cancelled under s 140(1) or (3) because another person’s visa was cancelled, and that other person has applied for review of their visa cancellation decision (or alternatively, the Tribunal is satisfied the other person will make such an application).

Subclause 050.212(5A) is met if the applicant held a visa that was cancelled under s 140(1), (2) or (3) because another person’s visa was cancelled under s 137J, and that other person has applied for revocation of their visa cancellation under s 137K or has applied for merits review of a non-revocation decision made under s 137L (or alternatively, the Tribunal is satisfied the other person will make such an application).
There is no information or evidence on the applicant’s files nor has the applicant made any claim that indicates that the applicant has had any visa cancelled.
Accordingly, the applicant does not meet cl 050.212(5) and (5A).

Court declaration / review of citizenship decision

Subclause 050.212(4AAA) is met if the applicant has applied for a declaration from a Court that the Migration Act does not apply to the applicant or has applied for judicial review or merits review of a decision made in relation to the applicant under the Australian Citizenship Act 2007 (Cth), and those proceedings have not been completed.
Subclause 050.212(4AB) is met if the applicant is a member of the immediate family (as defined under reg 1.12AA) of a person who meets the requirements of cl 050.212(4AAA) or is a brother or sister (who has not turned 18) of a person who meets the requirements of cl 050.212(4AAA) and who has not turned 18.
There is no information or evidence on the applicant’s files nor has the applicant made any claim that indicates that the applicant or her immediate family have made. An application for a Court declaration or a review of a citizenship decision, concludes: Accordingly, the applicant does not meet cl 050.212(4AA) and (4AB).

Ministerial intervention

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.
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 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 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. _
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.
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).
There is no information or evidence on the applicant’s files nor has the applicant made any claim that indicates that the applicant has made a Ministerial intervention request, then conclude: Accordingly, the applicant does not meet cl 050.212(5B), (6), (6AA) and (6B).

Compelling need to work

Subclause 050.212(6A) is met if the applicant holds a Bridging E visa that was granted on the basis of meeting cl 050.212(6AA), the applicant is the subject of a favourable exercise of the Ministerial power under ss 345, 351 or 417 of the Act, and the Tribunal is satisfied that the applicant has a compelling need to work.
Subclause 050.212(8) is met if the applicant holds a Bridging E visa that was granted as a result of a valid application for a substantive visa that could be granted onshore and is subject to condition 8101, and the Tribunal is satisfied that the applicant has a compelling need to work
There is no information or evidence on the applicant’s files nor has the applicant made any claim that indicates that the applicant has held a Bridging E visa granted on the basis that the applicant met the requirements of cl.050.212(6AA) and the Minister has not substituted a mor favourable decision for the decision of a review authority.
Accordingly, the applicant does not meet cl 050.212(6A) and (8).

Criminal Detention

Subclause 050.212(7) is met if the applicant is in criminal detention, and no criminal justice stay certificate or warrant is in force. A person is in ‘criminal detention’ if he or she is serving a term of imprisonment, including periodic detention, following conviction for an offence, or is in prison on remand. However, a person is not in criminal detention where they are subject to a community service order, on parole after serving part of a term of imprisonment, or on bail awaiting trial (reg 1.09). Periodic detention is defined in reg 1.03 to mean a system of restriction of liberty by which periods at liberty alternate with periods in prison.
There is no information or evidence on the applicant’s files nor has the applicant made any claim that indicates that the applicant was in criminal detention at the time of application, Accordingly, the applicant does not meet cl 050.212(7)
For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
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

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

Namoi Dougall
Member

[2023] AATA 2815

10 July 2023

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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