Karsten (Migration) - [2022] AATA 2797

Karsten (Migration) [2022] AATA 2797 (18 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Christoph Hermann KARSTEN
REPRESENTATIVE:  Ms Eugenia ANANG (MARN: 1279570)
CASE NUMBER:  2112416
HOME AFFAIRS REFERENCE(S):          CLF2002/8930

MEMBER:Nathan Goetz
DATE:18 January 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to refuse to grant the applicant a Bridging A (Class WA) visa.

Statement made on 18 January 2022 at 3:27pm
CATCHWORDS
MIGRATION – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – application for a substantive visa that has not been ‘finally determined’ – awaiting outcome of judicial review – decision under review affirmed
LEGISLATION
Extradition Act 1988 (Cth)
Migration Act 1958 (Cth), ss 65, 360
Migration Legislation Amendment (2016 Measures No.5) Regulation 2016 (Cth)
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 010.211
CASES
SZKUO v Minister for Immigration and Citizenship [2009] FCAFC 167
SZKUO v Minister for Immigration (No.2) [2009] FMCA 498
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 visa applicant a Bridging A (Class WA) Subclass 010 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant was represented in the review application by registered migration agent 1279570 Ms Eugenia Anang.
BACKGROUND
The applicant identifies as a 56-year-old male German citizen presently located in Australia.
On 15 May 2000 the applicant arrived in Australia holding an Electronic Travel Authority (Visitor) (Class UD) visa which had been granted two days previously, with a visa expiration date of 13 May 2001. The applicant travelled out of and into Australia on that visa several times, before departing Australia on this visa on 29 March 2001.
On 21 December 2001 the applicant arrived in Australia holding an Electronic Travel Authority (Visitor) (Class UD) visa which had been granted on 20 November 2001 with a visa expiration date of 21 March 2002.
On 12 February 2002 the applicant applied for a combined provisional partner (820) and permanent partner (801) visa. On 24 April 2002 the applicant was granted the provisional partner visa. The applicant travelled in and out of Australia on that visa until the last time he arrived in Australia on that visa on 2 January 2013. He has remained in Australia since that last arrival.
On 24 October 2006 the Minister for Justice and Customs issued a notice under the Extradition Act 1988 (Cth) stating that an extradition request had been received from Germany. This related to a warrant of arrest dated 16 September 2003 being issued by the Hannover District Court in Germany. On 6 December 2006 a warrant was issued for the applicant. On 20 December 2006 a Magistrate of the Australian Capital Territory issued a warrant on 20 December 2006. The applicant was detained by authorities. On 17 July 2007 the applicant applied to the Federal Court to challenge the notice and determination that he be surrendered to Germany. On 14 March 2008 the Federal Court dismissed the application.
The applicant was deported to Germany. In Germany, the applicant was convicted of an offence and sentenced to 3 years and 6 months imprisonment.
On 16 May 2010 the applicant returned to Australia having completed his prison sentence. A delegate decided not to cancel the applicant’s provisional partner visa (820), allowing the applicant to travel in and out of Australia as discussed above.
On 6 September 2011 the applicant applied for a protection visa. On 7 September 2011 the applicant was granted a bridging visa. On 6 December 2011 a delegate refused to grant the protection visa. On 12 January 2012 the bridging visa ceased.
On 10 April 2013 a delegate refused to grant the applicant the permanent partner (801) visa. On 19 April 2013 the provisional partner visa (820) ceased. The provisional partner (820) ceased upon notification of the refusal to grant the permanent partner (801) visa.
On 26 April 2013 the applicant applied to the Tribunal for review of the decision to refuse to grant him the 801 visa. On 9 January 2015 the Tribunal affirmed the decision to refuse to grant the 801 visa in MRT case 1306118. On 9 February 2015 the applicant applied to the Federal Circuit Court for judicial review of the Tribunal decision. On 11 February 2015 the applicant was granted a bridging visa in connection with the court proceedings. On 5 March 2015 the Federal Circuit Court dismissed the judicial review. On 24 March 2015 the applicant appealed against the decision of the Federal Circuit Court to the Federal Court. On 16 April 2015 the bridging visa granted on 11 February 2015 ceased but the same day the applicant was granted another bridging visa in connection with the court proceedings. On 17 April 2015 the Federal Court remitted the matter back to the judge of the Federal Circuit Court who made the order of 5 March 2015 for determination. On 29 June 2015 the judge of the Federal Circuit Court recused himself and the matter was transferred to another judge of that court. On 13 June 2019 the judge of the Federal Circuit Court who was allocated the matter remitted the matter back to the Tribunal for determination. On 6 May 2021 the Tribunal affirmed the decision to refuse to grant the applicant the Partner 801 visa in AAT case 1919314. On 3 June 2021 the bridging visa that had been granted on 16 April 2016 ceased. On 8 June 2021 the applicant applied to the Federal Circuit Court for judicial review of the Tribunal decision. No decision as been made by the Federal Circuit Court to date.
On 16 June 2021 the applicant applied for the bridging visa that is the subject of this decision record. On 25 August 2021 the delegate refused to grant the bridging visa on the basis that the applicant did not satisfy cl 010.211 of Schedule 2 of the Migration Regulations 1994 (the Regulations). On 15 September 2021 the applicant applied to the Tribunal to review the refusal decision. On 20 September 2021 the applicant was granted a bridging visa in connection with the review application and remains on this bridging visa to date.
On 10 December 2021 the Tribunal wrote to the applicant under s 360(1) of the Act and invited the applicant to appear at a Tribunal hearing commencing at 10:00am on 17 January 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because the Tribunal had considered the material it had and was unable to make a decision favourable to the applicant.
On 17 January 2021 the applicant appeared at the Tribunal hearing by telephone. The Tribunal was satisfied that a telephone hearing was appropriate given the current COVID-19 pandemic and current government health orders. The migration agent also attended the Tribunal hearing by telephone.
CRITERIA FOR THE VISA
010.211
(1) The applicant meets the requirements of subclause (2), (3), (4), (5) or (6).
(2) An applicant meets the requirements of this subclause if:
(a) 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
(b) that application has not been finally determined; and
(c) he or she held a substantive visa at the time that application was made; and
(d) either:
(i) he or she has applied for a bridging visa in respect of that application; or
(ii) a bridging visa can be granted in respect of that application under regulation 2.21B.
(3) An applicant meets the requirements of this subclause if:
(a) the applicant:
(i) 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
(ii) held a substantive visa when he or she made the application; and
(aa) that application was refused; and
(b) either:
(i) the applicant, or the Minister, has applied, within statutory time limits, for judicial review of a decision in relation to the applicant's substantive visa application; or
(ii) the applicant:
(A) is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in subparagraph (i); and
(B) made a substantive visa application that was combined with the substantive visa application mentioned in subparagraph (i); and
(c) at the time of that application, he or she held a Bridging A (Class WA) or Bridging B (Class WB) visa; and
(d) the judicial review proceedings (including proceedings on appeal, if any) are not completed.
(4) An applicant meets the requirements of this subclause if:
(a) the applicant:
(i) holds a Bridging A (Class WA) or Bridging B (Class WB) visa that:
(A) was granted as a result of a valid application, made in Australia, for a substantive visa of a kind that could be granted if the applicant was in Australia; and
(B) is subject to conditions 8101, 8102, 8103, 8104, 8105, 8107, 8108, 8111, 8112 , 8115 , 8547, 8607 or 8608; and
(ii) held a substantive visa when he or she made the substantive visa application; and
(b) he or she has not applied for a protection visa; and
(c) the Minister is satisfied that the applicant has a compelling need to work.
(5) An applicant meets the requirements of this subclause if:
(a) the applicant has made a valid application for:
(iii) a Partner (Migrant) (Class BC) visa; or
(iv) an Aged Parent (Residence) (Class BP) visa; or
(v) a Contributory Aged Parent (Residence) (Class DG) visa; or
(vi) a Contributory Aged Parent (Temporary) (Class UU) visa; and
(b) the application has not been finally determined; and
(c) the applicant has applied for a bridging visa in respect of that application; and
(d) the applicant holds, or has previously held, a Bridging A (Class WA) visa granted under regulation 2.21A in respect of the visa referred to in paragraph (a).
(6) An applicant meets the requirements of this subclause if:
(a) the applicant has made a valid application for:
(iii) a Partner (Migrant) (Class BC) visa; or
(iv) an Aged Parent (Residence) (Class BP) visa; or
(v) a Contributory Aged Parent (Residence) (Class DG) visa; or
(vi) a Contributory Aged Parent (Temporary) (Class UU) visa; and
(b) that application was refused; and
(c) either:
(i) the applicant, or the Minister, has applied, within statutory time limits, for judicial review of a decision in relation to the applicant's substantive visa application as the holder of a Bridging A (Class WA) or Bridging B (Class WB) visa; or
(ii) the applicant:
(A) is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in subparagraph (i); and
(B) made a substantive visa application that was combined with the substantive visa application mentioned in subparagraph (i); and
(d) the judicial review proceedings (including proceedings on appeal, if any) are not completed; and
(e) the applicant holds, or has previously held, a Bridging A (Class WA) visa granted under regulation 2.21A in respect of the visa referred to in paragraph (a).
The applicant is required to satisfy the criteria at the time he applied for the bridging visa and is required to continue to meet the criteria at the time a decision is made: cl 010.21 and cl 010.221.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal considered all the information that has been provided in support of the claim that the applicant meets the requirements of cl 010.211 of Schedule 2 of the Regulations.
As detailed in the bridging visa application form, the applicant seeks the bridging visa because he is awaiting the outcome of judicial review which he lodged on 8 June 2021 concerning the decision to refuse to grant him a visa that was made by a delegate on 10 April 2013. He seeks a Bridging A visa. He provided the grant reference for the last visa he held.
In the course of the review application, the applicant conceded to the Tribunal that he did not satisfy cl 010.211(4), (5) or (6) of Schedule 2 of the Regulations.
The applicant conceded that the migration history as detailed in this decision was accurate, save for the expiration date of the bridging visa granted on 16 April 2015. The department records demonstrate that this bridging visa ceased on 3 June 2021, which is 28 days after the Tribunal made a decision on 6 May 2021 on the review application that had been remitted by the Federal Circuit Court on 13 June 2019. The applicant contended that the bridging visa ceased not on 3 June 2021, but 35 days after the Tribunal notified the applicant of the decision made a decision on 6 May 2021, presumably on 8 July 2021.
The applicant submitted that he satisfied cl 010.211(2) and cl 010.211(3) of Schedule 2 of the Regulations and therefore met the criteria for the grant of the bridging visa.
Regarding cl 010.211(2) of Schedule 2 of the Regulations, it was contended that the applicant met this clause because he made an application for the permanent partner visa (801), that application had not been finally determined (noting that the applicant had applied for judicial review on 8 June 2021 and the court proceedings had not been concluded), that the applicant held an electronic travel authority visa at the time he applied for the permanent partner visa (801), and the applicant had applied for a bridging visa in respect of that application.
It was submitted that ‘not finally determined’ meant a visa application that is no longer subject of any form of review, including judicial review by the courts. The applicant directed the Tribunal to SZKUO v Minister for Immigration (No.2) [2009] FMCA 498 and SZKUO v Minister for Immigration and Citizenship [2009] FCAFC 167 and submitted that they demonstrated this proposition.
The Tribunal queried whether ‘not finally determined’ was limited to a matter no longer being subject to merits review with the Tribunal and did not include judicial review of Tribunal decisions. The applicant submitted that ‘not finally determined’ meant a visa application that had not been finalised, including finalised by way of court proceedings related to a decision to refuse the visa.
Regarding cl 010.211(3) of Schedule 2 of the Regulations, it was contended that the applicant did hold a bridging visa at the time he applied for judicial review on 8 June 2021 of the decision by the Tribunal on 6 May 2021 to affirm the decision to refuse to grant him a permanent partner (801) visa. This was because on 10 May 2016 the Migration Legislation Amendment (2016 Measures No.5) Regulation 2016 (Cth) (the Amendment) came into effect. Copies of the Amendment and the Explanatory Statement were provided to the Tribunal. This changed the cessation period of bridging visas from 28 days after notification of a decision, to 35 days after the date of a decision.
The Explanatory Statement detailed that ‘as the amendments relate to the cessation of a bridging visa, in effect this means that for bridging visas granted as a result of applications that are not finally determined (in accordance with the meaning of s 5 of the Act) on 19 November 2016, these visas will cease in accordance with the cessation events made by these amendments.’
It was submitted that in the case of the applicant’s bridging visa granted on 16 April 2015, as it related to a substantive visa application that had not been finally determined as at 19 November 2016, the bridging visa ceased not 28 days after the Tribunal decision of 6 May 2021, but 35 days after the Tribunal decision, meaning that when the applicant applied for the bridging visa that is the subject of this decision record on 16 June 2021, he still held the existing bridging visa, meaning that he could satisfy cl 010.212(3).
The applicant provided the Tribunal with a copy of the bridging visa grant notice of 16 April 2015. That grant notice details that the bridging visa allowed the applicant to remain in Australia until 28 days after the judicial review proceedings concerning the partner visa were completed. The visa grant notice also details that in the event that the court remitted the application to the Tribunal or the department for reconsideration, the bridging visa would allow the applicant to remain in Australia for 28 calendar days after he is notified of a decision on the partner visa. The applicant conceded that the judicial review as detailed in the bridging visa grant notice meant the judicial review that was determined on 13 June 2019, where the court remitted the matter back to the Tribunal for reconsideration.
The applicant said that despite what was written in the bridging visa grant notice and despite the department record that suggested that the bridging visa ceased on 3 June 2021, the Amendments and Explanatory Statement meant that this was incorrect. The bridging visa ceased after 35 days from the decision of 6 May 2021, not 28 days from the notification of the decision of 6 May 2021.
The Tribunal drew the applicant’s attention to the second last page of the Explanatory Statement and noted that the Statement read that ‘Clause 5802, titled ‘Operation of Schedule 2’ provides that these amendments apply in relation to bridging visas granted on or after 19 November 2016.’ Further, the last paragraph of the Explanatory Statement read that ‘It is appropriate that these amendments apply to visa applications already made before the commencement of the Regulation as it is necessary for effective administration. That is, the distinction between bridging visas granted before 19 November 2016 and on or after 19 November 2016 provides bridging visa holders with a clear and unambiguous point in time from which to determine the relevant cessation framework.’ The Tribunal suggested that these statements, together with the wording of the Amendment ‘The amendments of these Regulations made by Schedule 2 to the Migration Legislation Amendment (2016 Measures No. 6) Regulation 2017 apply in relation to a bridging visa granted on or after 19 November 2016’ made it clear that if the applicant had been granted a bridging visa earlier than 19 November 2016 (which the applicant had, namely 16 April 2015), the 28-day cessation period remained. It appeared to the Tribunal that the increase to a 35-day cessation period only applied to bridging visas granted on or after 19 November 2016.
The applicant disputed this and noted that the same Explanatory Statement also contained a paragraph that read ‘As the amendments relate to the cessation of bridging visas, in effect this means that for bridging visas granted as a result of applications that are not finally determined (in accordance with the meaning in s 5 of the Migration Act) on 19 November 2016, these visas will cease in accordance with the cessation events made by these amendments.’
The applicant contended that the statement that ‘bridging visas a result of applications that are not finally determined….on 19 November 2016’ meant that if there was an outstanding visa application as at 19 November 2016, then the bridging visa granted prior to 19 November 2016 also had the cessation period increased to 35 days from 28 days. The applicant submitted that this part of the Explanatory Statement supported his argument but accepted that it appeared to be in conflict with other parts of the Explanatory Statement.
The Tribunal discussed the possibility that the part of the Explanatory Statement he referred to as supporting his argument may actually be read that ‘... in effect, this means that for bridging visas granted on 19 November 2016 as a result of applications that are not finally determined, these visas will cease in accordance with the cessation events made by these amendments.’ The applicant disputed that this portion of the Explanatory Statement should be read that way.
FINDINGS AND REASONS
The issue in this case is whether the applicant satisfies cl 010.211(2) or (3) of Schedule 2 of the Regulations.

Having considered all the material the Tribunal has, including the written submissions and discussion at the Tribunal hearing, the Tribunal has concluded that that the decision under review should be affirmed.
The applicant does not satisfy cl 010.211(2) because the Tribunal is not satisfied that the applicant has an ‘application for a substantive visa that has not been finally determined as required by (b) of that clause. The Tribunal was not persuaded by the applicant’s arguments that ‘not finally determined’ also included matters that were being judicially reviewed by the court.
The substantive visa application, namely the permanent partner (801) visa, was finally determined when the Tribunal made a decision on 6 March 2021 to affirm the decision to refuse to grant the permanent partner (801) visa. This is because ‘finally determined’ is defined in the Act in s 5(9) to mean, so far as relevant to the applicant’s review application, as a decision that has been made that is not, or is no longer, subject to any review under Part 5 or 7 of the Act. It is also defined as a decision that was subject to some form of review under Part 5 or Part 7 of the Act, but the period within which such a review could be instituted has ended without a review having been instituted. Section 5(9A) further defines ‘finally determined’ to mean when a decision is made by the Tribunal or Immigration Assessment Authority by the various methods of written and oral decisions. Part 5 or Part 7 reviews are concerned with merits reviews of decisions by either the Tribunal or Immigration Assessment Authority, not judicial review of Tribunal or Immigration Assessment Authority decisions. The Tribunal does not accept that a matter is not finally determined until judicial review applications of a decision (if instated) have been completed. The ‘review’ in the context of the definition of ‘finally determined’ means merits review by the Tribunal or Immigration Assessment Authority, not judicial review by a court.
The applicant does not satisfy cl 010.211(3) because the Tribunal is not persuaded that the Amendment amended the cessation time of the applicant’s bridging visa granted on 16 April 2016 from 28 days from notification of the decision of 6 May 2021 to 35 days after the Tribunal decision of 6 May 2021.
The Amendment makes it quite clear that it relates to bridging visas granted on or after 19 November 2016. In so far as one part of the Explanatory Statement suggesting that if the substantive visa application connected with the bridging visa application had not been finally determined by 19 November 2016 then the bridging visa cessation period would still increase to 35 days even if the bridging visa was granted prior to 19 November 2016, the Tribunal is satisfied that the wording of the Amendment and the other parts of the Explanatory Statement suggesting otherwise demonstrate that the proper interpretation of that particular part of the Explanatory Statement was poorly expressed and should be interpreted as the Tribunal interpreted it in discussion with the applicant. That is to say, it related to bridging visas granted on or after 19 November 2016 in connection with applications that had not been finally determined.
As the applicant applied for the bridging visa on 16 June 2021, he did not apply for the bridging visa while he held an existing bridging visa. His existing bridging visa expired on 3 June 2021, which is 28 days after the applicant was notified of the decision by the Tribunal to affirm the decision to refuse to grant the applicant the permanent partner (801) visa. As he did not hold a bridging visa at the time he applied for the bridging visa that is the subject of this decision record, he does not satisfy cl 010.211(3).
The applicant does not satisfy cl 010.211(4), (5) or (6) as conceded by the applicant.
CONCLUSION
For the above reasons, the applicant does not satisfy cl 010.211(2), (3), (3), (4), (5) or (6) of Schedule 2 of the Regulations.
DECISION
The Tribunal affirms the decision to refuse to grant the applicant a Bridging A (Class WA) visa.
Nathan Goetz
Member