Kour (Migration)

[2024] AATA 3481

Kour (Migration) [2024] AATA 3481 (19 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Inderjit Kour
Master Jaskaran Singh

REPRESENTATIVE:  Mr Rajiv Dalal

CASE NUMBER:  2311854

HOME AFFAIRS REFERENCE(S):          BCC2016/1609968

MEMBER:James Silva

DATE:19 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Bridging B (Class WB) visas.

Statement made on 19 August 2024 at 5:40pm

CATCHWORDS
MIGRATION – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – wife and son of primary visa holder with judicial review of student visa refusal in progress – not included in that application so not eligible for Bridging A visa – did not hold Bridging A or B or any other visa at time of application – no response to invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 020.211, 020.221

CASE
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Bridging B (Class WB) visas under s.73 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the bridging visas on 18 July 2023, together with Mr Surinder Pal Singh (their husband and father respectively).

3. The delegate refused to grant the visas on 4 May 2022, on the basis that the applicants were not the holders of Bridging A or Bridging B visas at the time of decision, and therefore did not satisfy cl.020.221. (The delegate did not make express findings in relation to cl.020.211, which requires an applicant to hold a Bridging A or Bridging B visa at the time of application.)

4. The applicants were represented in relation to the review by Mr Rajiv Dalal, Asky International Lawyers.

5. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

   CRITERIA FOR BRIDGING A VISA

6. Class WB contains one subclass (020) and is for holders of a Bridging visa A or Bridging visa B who have ‘substantial reasons’ for needing to travel out of Australia while their substantive visa application is being processed or while judicial proceedings are on foot. This is the only Bridging visa which permits a holder to re-enter Australia.

7. The criteria for the grant of a Bridging B visa are set out in the Act and in Part 020 of Schedule 2 of the Migration Regulations 1994 (Cth)(the Regulations).

8. Applicants must satisfy clause 010.211, which reads: ‘The applicant is the holder of (a) a Bridging A (Class WA), or (b) a Bridging B (Class WB) visa.’ Cl. 020.221 requires that, at the time of decision: ‘The applicant continues to satisfy the criteria set out in clauses 020.211 and 020.212’.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

9. The applicants are nationals of India. They are a woman and a male teenager, both dependants of Mr Surinder Pal Singh, who first came to Australia in June 2009 as the holder of a student visa. They accompanied Mr Singh to Australia and were included in his student visa.

10. The applicants were included in the Bridging B visa application (Form 1006) lodged by Mr Surinder Pal Singh on 18 July 2023. He indicated that he was currently holding a Bridging A visa, on the basis of an ongoing judicial review of a decision to refuse to grant him a student visa. Mr Singh and the applicants indicated that they wished to travel to India from 21 July to 21 September 2023, to visit family. Department records indicate that Mr Singh was granted a Bridging B visa on 20 July 2023, permitting multiple travel outside Australia with a final return date of 20 July 2024.

11. The applicants’ visa status differs from that of Mr Surinder Pal Singh. They held Bridging A visas up to 30 June 2023, and held no visas until 27 October 2023, when they were granted Bridging C visas. The Department records suggest that they were not included in Mr Singh’s application for judicial review of the decision to refuse to grant him a student visa, and that they were therefore not eligible for Bridging A visa grants in association with that application. The critical point for this review is that they did not hold Bridging A visas on the date of applying for the Bridging B visas.

    Evidence and procedure

12. The Tribunal has before it the Department file relating to the applicants and Mr Surinder Pal Singh, which includes the Bridging B visa application lodged 18 July 2023 and the decision to refuse to grant Bridging B visas to the applicants on 20 July 2023. It also includes a range of other material, such as Mr Singh’s Student visa application, supporting documents and correspondence, the Department’s internal (Integrated Client Services Environment, ICSE) notes, and the grant of other bridging visas to the applicants and Mr Singh. These are not relevant to the current application and decision. The applicants provided a copy of the delegate’s decision record to the Tribunal, with the application for review.

13. On 29 July 2024, the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them to provide, in writing, comments on information that it considered would be part of the reason for affirming the decision under review.[1]

    [1] The Tribunal sent an earlier letter under s.359A on 12 July 2024. However, it contained incorrect information, as it suggested that the Bridging A visas issued on 24 July 2020 were still in force as of the date of this application, on 18 July 2023, and that the applicants therefore met cl.020.211. The Tribunal later wrote to the applicants, asking that they disregard the letter dated 12 July 2024.

14. The particulars of the information were:

    You applied for Bridging B visas on 18 July 2023 (together with Mr Surinder Pal Singh).

    Department records show:

    ·     You previously held Bridging A visas (issued on 24 July 2020); these ceased on 30 June 2023.

    ·     From 30 June to 27 October 2023, you did not hold any visas.

    ·     You were granted Bridging C visas on 27 October 2023, and continue to hold these.

15. The relevance of the information was explained in the following terms:

    This information is relevant to the review because it appears to indicate:

    ·     At the time of applying for your Bridging B visas (on 18 July 2023), you did not hold any visas. As such, you were not the holders of Bridging A or Bridging B visas, and cannot meet cl.020.211

    ·     Due to this, and also because you currently hold Bridging C visas, you do not continue to meet cl.020.211 at the time of decision.

16. The invitation was sent to the last address provided in connection with the review, namely that of their legal representative Mr Rajiv Dal. It advised that, if the comment was not provided in writing by 12 August 2024, the Tribunal may make a decision on the review without taking further steps to obtain the comments, and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

17. The review applicants have not provided the comments within the prescribed period and no extension has been granted. There has been no correspondence since 28 August 2023, which was in connection with the applicants’ request for a fee reduction, and a partial refund of the fee. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

18. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments or to invite further submissions.

    Analysis and findings

19. Clause 020.211 requires that ‘the applicant is the holder of: (a) a Bridging A (Class WA) visa; or (b) a Bridging B (Class WB) visa’. At the time of application, on 18 July 2023, the applicants did not hold any visa. They therefore do not satisfy cl.020.211.

20. Clause 020.221 requires that, at the time of decision ‘the applicant continues to satisfy the criteria set out in clauses 020.211 and 020.212.’ As the applicants did not satisfy the criteria in cl.020.211 at the time of application, it follows that they do not continue to do so at the time of decision.

21. As the applicants are not the holders of Bridging A or Bridging B visas at the time of this decision, they do not continue to satisfy the criteria set out in cl.020.211, and therefore do not meet cl.020.221. 

    Conclusion

22. For these reasons, the applicants do not satisfy the criteria for the grant of a Subclass 020 (Bridging (Class WB)) visas.

    DECISION

23. The Tribunal affirms the decisions not to grant the applicants Bridging B (Class WB) visas.

    James Silva
    Member