Moussa (Migration)

[2021] AATA 943

Moussa (Migration) [2021] AATA 943 (30 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Jamal MOUSSA

CASE NUMBER:  1906348

DIBP REFERENCE(S):  BCC2017/478206

MEMBER:Nathan Goetz

DATE:30 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to refuse to grant the applicant a Bridging A (Class WA) (Subclass 010) visa.

Statement made on 30 March 2021 at 9:54am

CATCHWORDS
MIGRATION – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – no substantive visa held at time of application – technical difficulties with online lodgement system prevented making of application within time – difficulties acknowledged by department – application made one day out of time, then withdrawn – no other application made – no legislative provision to waive requirements – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 73, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 010.211(2)(c)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision by a delegate of the Minister refusing to grant the applicant a Bridging A (Class WA) (Subclass 010) visa under s.73 of the Migration Act 1958 (‘the Act’).

2. The applicant last arrived in Australia on 16 September 2016 holding a UC-457 visa. This visa ceased on 29 January 2017.

3. On 18 January 2019 the applicant applied for the Bridging A visa. He had been on a series of Bridging E visas from 10 February 2017 after he lodged an application for another UC-457 visa on 30 January 2017.

4. On 27 February 2019 the delegate refused to grant the bridging visa on the basis that the applicant did not meet cl.010.211.

5. On 18 March 2019 the applicant applied to the Tribunal for a review of the refusal decision.

6. On 11 March 2021 the Tribunal wrote to the applicant and requested information under s.359(2) of the Act. In short, the Tribunal asked the applicant to demonstrate how the applicant met cl.010.211. That same day, the Tribunal invited the applicant to appear at a Tribunal hearing on 29 March 2021 to give evidence and present arguments.

7. On 25 March 2021 the applicant responded to the Tribunal’s request for information. The applicant also provided written material on the day of the Tribunal hearing.

8. On 29 March 2021 the applicant appeared at a Tribunal hearing to give evidence and present arguments. The hearing was conducted as a telephone hearing given that the applicant resided in Victoria and the Member was located in New South Wales.

9. The applicant was represented in the review application by registered migration agent 1574752 Ms Olia Kamereddine. The migration agent attended the Tribunal hearing by telephone.

   CRITERIA FOR BRIDGING A VISA

10. The applicant was refused the Bridging A visa on the basis that he did not met cl.010.211.

11. Clause 010.211 contains six subclauses. Subclause (1) provides that the criteria for the Bridging A visa is met if the applicant meets the requirements of subclause (2), (3), (4), (5) or (6). The criteria must be satisfied at the time the applicant makes the application for the Bridging A visa. The subclauses are noted below.

    (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).

12. The definition of ‘substantive visa’ is relevant to this review application. Section 5 of the Act defines ‘substantive visa’ as a visa other than a bridging visa, a criminal justice visa or a enforcement visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The applicant identifies as a 44-year-old male citizen of Lebanon.

14. On 3 January 2013 the applicant was granted the UC-457 visa. He travelled in and out of Australia on this visa several times.

15. The UC-457 visa was the subject of a decision by the delegate to cancel the visa on the basis that he did not comply with condition 8107. The delegate made that decision on 20 October 2016. The applicant sought review of the cancellation decision with the Tribunal. On 27 January 2017 the Tribunal refused to uphold the cancellation decision and decided that this visa was not cancelled: AAT case 1617719.

16. The UC-457 visa then ceased on 29 January 2017. The applicant then sought to apply for another UC-457 visa.

17. The applicant contended in the submissions dated 25 March 2021 that on 27 January 2017 he ‘experienced technical difficulties with ImmiAccount which prevented him from making an application for a substantive visa before his last substantive visa expired.’ That same submission claimed that on 30 January 2017, which was one day after the UC-457 visa expired, ‘the Department acknowledged the ‘technical issues the Department was encountering on 27 January 2017 by way of email.’ The applicant provided an email from the Department which was identified as ‘Annexure C’ where a representative of the Department wrote that it was confirmed that ‘one of the circumstances specified in Legislative Instrument 13/063 applied to his situation’ and therefore, the applicant was permitted to lodge the visa application in a ‘different way.’ The applicant provided the Legislative Instrument in the written submission of 25 March 2021. As would appear to be relevant, paragraph 11 of that Instrument provides that where electronic lodgement is prevented by the Department systems, then the applicant was permitted to apply for the visa in what could be described as hardcopy form.

18. The applicant then applied for the new UC-457 visa on 30 January 2017. For the sake of completeness, the Tribunal notes that the applicant withdrew this visa application by email on 31 January 2019.

19. At the Tribunal hearing, the migration agent told the Tribunal that the applicant had not lodged any application for a substantive visa at this stage. He was giving consideration to doing so, either through another UC-457 visa application or an RN-187 visa application. The migration agent told the Tribunal that the applicant had not lodged any substantive visa yet because he was prevented from doing so while he was onshore. He would be required to make an offshore application and did not want to do so because of his Australian citizen child whom he financially supports. To that end, the Tribunal notes that it was provided with 25 photographs on the morning of the Tribunal hearing of the applicant with his daughter. The Tribunal asked the migration agent how these photographs were relevant to the facts in issue for this case, namely whether the applicant met cl.010.211. The migration agent told the Tribunal that the Tribunal needed to consider the United Nations Convention on the Rights of the Child and apply the principle of the ‘best interest of the child’ when deciding this case. The Tribunal asked how the best interest of the child meant that the applicant met cl.010.211. The migration agent then conceded that the photographs and the applicant’s financial support of his child were not relevant to whether the applicant met cl.010.211. The Tribunal noted to the migration agent its displeasure being provided irrelevant information that does not address a fact in issue, namely whether the applicant met cl.010.211.

20. The migration agent put to the Tribunal that the applicant should not have been granted a Bridging E visa when he had applied for a Bridging A visa. She told the Tribunal that this amounted to a jurisdictional error. The Tribunal reminded the migration agent that the only issue that the Tribunal was considering was whether the applicant met cl.010.211 and whether the applicant was granted another bridging visa was irrelevant to its task. While it is curious that the Department would grant the applicant a visa that he did not apply for (and the Tribunal acknowledges that the Department did grant the applicant a Bridging E visa on 10 February 2017) the migration agent failed to demonstrate to the Tribunal how this was relevant to whether the applicant met cl.010.211 or how this meant that there was an error, or indeed a jurisdictional error that meant that the applicant did meet cl.010.211.

21. The migration agent told the Tribunal that it was not the applicant’s fault that he was not able to lodge his substantive visa application on 27 January 2017. He could not be responsible for the fact that the Department’s online lodgement system was not working. The agent submitted to the Tribunal that the Department had acknowledged this fault through the email where the Department permitted the applicant to lodge the substantive visa application in an alternative way. The agent noted the applicant’s attempts to get the Department to reconsider their decision because of the claimed jurisdictional error, and noted the Department’s email where it advised the applicant that the refusal decision was subject to the review process with the Tribunal and that the Tribunal may cure any defect in the decision. The migration agent also noted that an earlier email from the Department noted that it was seeking further advice about the migration agent’s submission that the applicant became ‘unlawful due to circumstances beyond his control’. The migration agent suggested to the Tribunal that it should contact the Department to conduct further investigations about this advice which would demonstrate that the applicant should be granted the Bridging A visa. The Tribunal found this a curious request by the migration agent, as it was a matter for the applicant to satisfy the Tribunal that he met the criteria for the Bridging A visa.

22. The migration agent put to the Tribunal that if the Department’s online lodgement system had been working on 27 January 2017 when the applicant attempted to lodge his UC-457 visa application, then he would have held a substantive visa at that time and met the requirements for cl.010.211(2)(c). The Tribunal agreed with this assessment but raised with the migration agent that the applicant had not, as a matter of fact, lodged that visa application that day. He was recorded as having lodged the UC-457 visa application on 30 January 2017 which he did via the ‘different way’ permitted by the Legislative Instrument. The Tribunal queried with the migration agent where in the Legislative Instrument it provided that cl.010.211(2)(c) did not apply to an applicant in circumstances where the Department’s online lodgement system was not working. The migration agent was unable to demonstrate that the Legislative Instrument did so. The Tribunal queried with the migration agent where there was provision for the Tribunal to exercise discretion to waive the requirements of 010.211(2)(c). The migration agent was unable to demonstrate that the Tribunal had such a discretion.

    FINDINGS AND REASONS

23. The issue in this review application is whether the applicant meets cl.010.211. For the following reasons, the Tribunal must affirm the refusal decision.

24. The applicant’s case, as argued through his migration agent, is that it is unfair that he does not meet the requirements of cl.010.211(2) because he was unable to lodge his UC-457 visa application on 27 January 2017 prior to the expiration of his previously held UC-457 visa on 29 January 2017. Due to technical problems with the Department’s online lodgement system on 27 January 2017, he had to wait until the Department advised him on 30 January 2017 that the Legislative Instrument allowed him to lodge the UC-457 visa application in a different way, and he promptly lodged the UC-457 visa the day he was advised that he was permitted to lodge the application in a way permitted by the Legislative Instrument. It is true that the applicant attempted to resolve his migration issue promptly.

25. However, as pointed out by the Tribunal to the migration agent, this does not change the fact that the applicant lodged his UC-457 visa application after the expiration of his previously held UC-457 visa. While it may arguably be unfair that the applicant is unable to meet cl.010.211(2) because of circumstances beyond his control, the Legislative Instrument does not deem the UC-457 visa application to be lodged earlier than 30 January 2017, nor does it or any other regulation allow the Tribunal to ignore the requirements of cl.010.211(2)(c). Put simply, the applicant was required, so far as cl.010.211(2) is concerned, to hold a substantive visa at the time he applied for the subsequent UC-457 visa. When he lodged the subsequent UC-457 visa on 30 January 2017, he did not hold a substantive visa, as his previous substantive visa expired the day prior, namely 29 January 2017.

26. Therefore, the applicant does not meet the requirements of cl.010.211(2).

27. The Tribunal then turns its consideration to whether the applicant meets any of the other subclauses of cl.010.211, namely subclause (3), (4), (5) or (6).

28. The applicant does not meet the requirements of cl.010.211(3) because he had not made, at the time he applied for the subsequent UC-457 visa on 30 January 2017, an application for a substantive visa while he held a substantive visa application as required by cl.010.211(3)(a)(ii).

29. The applicant does not meet the requirement of cl.010.211(4) because he did not hold a substantive visa when he made the application for the subsequent UC-457 visa on 30 January 2017, as required by cl.010.211(4)(ii).

30. The applicant does not meet the requirements of cl.010.211(5) because the applicant has not made a valid application for any visa provided as a requirement of cl.010.211(5)(a).

31. The applicant does not meet the requirements of cl.010.211(6) because the applicant has not made a valid application for any visa provided as a requirement of cl.010.211(6)(a).

32. Therefore, the applicant does not meet the requirements of cl.010.211 and cannot be granted the Bridging A visa.

    DECISION

33. The Tribunal affirms the decision to refuse to grant the applicant a Bridging A (Class WA) (Subclass 010) visa.

    Nathan Goetz
    Member