Leger (Migration)

[2021] AATA 4943

Leger (Migration) [2021] AATA 4943 (12 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Frances Taukeiaho Leger

CASE NUMBER:  2110770

HOME AFFAIRS REFERENCE(S):          CLF2021/22020

MEMBER:James Silva

DATE:12 November 2021

PLACE OF DECISION:  Sydney

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

Statement made on 12 November 2021 at 5:14pm

CATCHWORDS
MIGRATION –Bridging B (Class WB) visa– Subclass 050 (Bridging (General)) – applicant had not made a valid application for a substantive visa – decision under review affirmed

LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cl 020.212

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 Home Affairs to refuse to grant the applicant a Bridging B (Class WB) visa under s 73 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 17 February 2021, and the delegate decided to refuse the application on 29 July 2021. The applicant sought review of this decision. Registered migration agent Mr Anthony Takchi is representing him in this matter.

   BACKGROUND

3. The applicant is a 23-year-old male citizen of Tonga. He arrived in Australia on 10 December 2014, on a visitor visa (subclass 600), which ceased on 10 January 2015. It appears that he remained in Australia unlawfully from that time until mid-2020.

4. The applicant has held successive Bridging E visas: (a) from 11 August to 11 November 2020; (b) from 10 November 2020 to 10 May 2021; and (c) from 18 May 2021 to 18 November 2021 (ongoing).

5. On 17 February 2021, the applicant lodged a Bridging B visa application. He stated that he wanted to visit Tonga from 5 March to 4 April 2020, to visit family. The delegate refused the application on 29 July 2021, on the basis that the applicant did not meet cl.020.212 of the Migration Regulations 1994 (the Regulations).

6. The applicant lodged an application for review of the delegate’s decision on 18 August 2021, which included a copy of the decision under review.

7. On 9 November 2019,  the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 20 November 2021. The Tribunal drew to the applicant’s attention that one of the requirements for the grant of a Bridging B visa is that at the time of application, the applicant had made, in Australia, a valid visa of a substantive visa. As noted in the delegate’s decision record, there was no evidence of the applicant having made such an application as of that date.

8. On 12 November 2021,  the representative advised the Tribunal, on the applicant’s behalf, that he (the applicant) did not wish to give oral evidence and that he consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. The Tribunal has no reason to doubt the representative’s authority to give the applicant’s consent, particularly given that the applicant did not appear to meet the criteria for the grant of the visa.

9. This matter has therefore been determined on the evidence available to the Tribunal.

   CRITERIA FOR THE VISA

10. Class WB contains one subclass (020), and is for the 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.

11. Clause 020.212(1) states that an applicant must meet the requirements of subclause (2), (3), (4) or (5) at the time of application. Relevantly, subclauses (2)(a) and (3)(a) require that ‘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’. Subclauses (4)(a) and (5)(a) require that ‘the applicant has made a valid application for a Partner (Migrant)(Class BC) visa’. Clause 020.221 states that the applicant must continue to satisfy this clause at the time of decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS

12. The delegate, in the decision under review, found that the applicant did not meet cl.020.212(2)(a), as he had not made, in Australia, a valid application for a substantive visa. The delegate then reasoned that the applicant could not satisfy the criterion for the grant of a Bridging B visa.

13. The applicant has not claimed, and there is nothing before the Tribunal to suggest, that he had made, in Australia, a valid application for a substantive visa, at the time of application (on 17 February 2021). The Tribunal therefore finds that the applicant does not meet cl.020.212(2)(a).

14. The delegate found that, as only cl.020.212(2)(a) is relevant to the applicant’s circumstances, he therefore could not meet the criteria for the grant of a Bridging B visa. The Tribunal finds that, as the applicant does not meet cl.020.212(2)(a), for reason of not having made, in Australia, a valid application for a substantive visa, it follows that he also cannot meet cl.020.212(3)(a), cl.020.212(4)(a) or cl.020.212(5)(a) (if those subclauses were relevant to his circumstances).. He therefore does not meet subclauses 020.212(2), (3), (4) or (5), and does not satisfy the criterion in cl.020.212(1).

15. Clause 020.212 requires (among other things) that an applicant has made, in Australia, a valid application for a substantive visa, at the time of application. As the applicant had not made a valid application for a substantive visa at the relevant time, he does not meet cl.020.212 and cannot be granted a Bridging B visa.

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Bridging B (Class WB) visa.

    James Silva
    Member