Muhammad (Migration)

[2024] AATA 143

Muhammad (Migration) [2024] AATA 143 (25 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gulzar Muhammad

REPRESENTATIVE:  Mr Stephen John

CASE NUMBER:  2310964

HOME AFFAIRS REFERENCE(S):          CLF2013/125908

MEMBER:Member Nathan Goetz

DATE:25 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision of the delegate dated 11 July 2023 refusing to grant the applicant a Bridging B (Class WB) visa.

Statement made on 25 January 2024 at 2:28pm

CATCHWORDS

MIGRATION – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – holder of a Bridging A or Bridging B visa – time of decision requirement – periods of unlawful residence – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2, cl 020.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a Bridging B (Class WB) visa.

2. The applicant was represented in the review by an Australian legal practitioner.

   BACKGROUND

   Previous substantive visa applications

3. On 28 April 2010 the applicant was offshore and granted a student visa. He arrived in Australia on 16 May 2010 holding that visa. On 11 October 2011 that visa ceased.

4. On 19 January 2012 the applicant was granted a student visa. On 4 June 2013 that visa ceased.

5. On 4 June 2013 the applicant applied for a partner visa. On 12 December 2016 a delegate refused to grant the visa. On 29 December 2016 an application was made to the Tribunal for review of the decision. On 8 June 2018 the Tribunal affirmed the decision: AAT 1622516. On 18 July 2018 an application was made to the Federal Circuit Court for judicial review of the Tribunal decision. On 13 February 2019 the Court quashed the decision and remitted the matter back to the Tribunal for redetermination. On 5 March 2021 the Tribunal affirmed the decision: AAT 1903469. On 30 March 2021 an application was made to the Federal Circuit Court for judicial review of the Tribunal decision. On 14 July 2021 the Court quashed the decision and remitted the matter back to the Tribunal for redetermination. On 2 June 2023 the Tribunal affirmed the decision: AAT 2109272. On 27 June 2023 an application was made to the Federal Circuit Court for judicial review of the Tribunal decision. That judicial review remains outstanding.

   Previous bridging visa grants

6. On 9 November 2011 the applicant was granted a Bridging C (Class WC) visa. That visa expired on 19 January 2012.

7. On 5 June 2013 the applicant was granted a Bridging Visa A (Class WA) visa. That visa expired on 15 September 2015.

8. On 15 June 2015 the applicant was granted a Bridging B (Class WB) visa. On 8 November 2016 that visa expired.

9. On 8 November 2016 the applicant was granted a Bridging B (Class WB) visa. That visa expired on 18 July 2018.

10. On 26 July 2018 the applicant was granted a Bridging B (Class WA) visa. That visa expired on 15 August 2018.

11. On 15 August 2018 the applicant was granted a Bridging B (Class WB) visa. That visa expired on 6 December 2018.

12. On 6 December 2018 the applicant was granted a Bridging B (Class WB) visa. That visa expired on 26 June 2019.

13. On 26 June 2019 the applicant was granted a Bridging B (Class WB) visa. That visa expired on 11 December 2019.

14. On 11 December 2019 the applicant was granted a Bridging B (Class WB) visa. That visa expired on 13 April 2021.

15. On 22 October 2021 the applicant was granted a Bridging A (Class WA) visa. That visa expired on 21 April 2022.

16. On 21 April 2022 the applicant was granted a Bridging B (Class WB) visa. That visa expired on 10 July 2023.

    Current visa application

17. On 10 July 2023 the applicant applied for the Bridging B (Class WB) visa. At that time, the criteria for the Bridging B (Class WB) were contained in cl 020 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

18. On 11 July 2023 the delegate refused to grant the applicant the bridging visa on the basis that the applicant did not satisfy cl 020.211. This requires the following:

    020.211 

    The applicant is the holder of:

    (a)  a Bridging A (Class WA) visa; or

    (b)  a Bridging B (Class WB) visa.

19. The applicant is required to satisfy this criterion at the time of visa application: cl 020.21 and at the time a decision is made: cl 020.211.

20. On 24 July 2023 the applicant applied to the Tribunal for review of the decision.

21. On 10 January 2024 the Tribunal wrote to the applicant via his representative for two reasons.

22. The first reason was to invite the applicant under s 360(1) of the Act to appear at a Tribunal hearing scheduled for 12pm on 12 February 2024 so the applicant could give evidence and present arguments.

23. The second reason was to invite the applicant under s 359(2) of the Act to provide the Tribunal with information in writing. The information requested, and the response received, are detailed later in this decision record.

24. For reasons that will become apparent, the Tribunal determined that the applicant had not provided the Tribunal with the information requested in the letter issued under s 359(2) of the Act. As a consequence of the applicant failing to provide the Tribunal with the information requested in writing by 24 January 2024, or seek and be granted an extension of time to do so, the Tribunal hearing was cancelled, and the Tribunal made a decision on the review.

    CONSIDERATION OF EVIDENCE

25. In the bridging visa application form submitted on 10 July 2023, the applicant identified that he either currently held, or last held, a Bridging B visa. He provided a visa grant number. That visa grant number demonstrates that the applicant held, at the time of the bridging visa application, a bridging visa that was granted on 21 April 2022 and expiring on the day he lodged the application for the new bridging visa.

26. The form disclosed that the purpose of the bridging visa application was to allow the applicant to travel overseas to Pakistan. He indicated he would depart Australia on 15 July 2023 and return on 20 October 2023.

27. The delegate decision record refusing the grant of the bridging visa makes it clear that the applicant is required to satisfy cl 020.211 at the time he applied for the bridging visa, as well as at the date a decision is made on the visa application. The delegate detailed that at the time the delegate made a decision on the visa application, the applicant did not hold either a Bridging A (Class WA) visa or a Bridging B (Class WB) visa. This was due to the fact that the applicant’s Bridging B (Class WB) visa expiring on 10 July 2023.

28. On 10 January 2024 the Tribunal wrote to the applicant via his representative and requested, under s 359(2) of the Act, that the applicant provide the Tribunal with information in writing. The invitation noted that the delegate refused to grant the Bridging B (Class WB) visa on the basis that the applicant did not satisfy cl 020.211 and invited the applicant to provide the Tribunal with information to demonstrate that he satisfied this clause.

29. The invitation warned the applicant that he needed to provide the information requested in writing by 24 January 2024, or seek and be granted an extension of time to provide the information. The invitation made it plain that if the information was not received, the hearing scheduled for 12 February 2024 would be cancelled and the Tribunal would make a decision on the review on the material it has. This was because the applicant would lose any entitlement to appear at a Tribunal hearing: ss 359C1, 360(2)(c), 360 of the Act.

30. On 18 January 2024 the applicant responded to the request for information visa his representative. It was submitted that the applicant held a Bridging B (Class WB) visa at the time he applied for the Bridging B (Class WB) visa. Attached to the submission was the bridging visa grant notice for the visa granted on 21 April 2022, a notification letter that a bridging visa application made by the applicant was deemed invalid on 7 July 2023 (though the date of application is unclear) and screenshots of a payment made on 10 July 2023 and a visa application submitted via the Department’s online service on 10 July 2023. The payment and screenshot clearly relate to the Bridging B (Class WB) visa application that was submitted that day. The submission detailed that the applicant was advised that the paper application he submitted for a bridging visa was deemed invalid on 7 July 2023, so he submitted an online application for a bridging visa on 10 July 2023.

31. The submission was addressed to the time of application criteria: cl 020.21. However, the applicant is also required to meet the requirements of cl 020.211 at the time a decision is made. In this case, it is the time the Tribunal makes a decision on the review.

32. Given that the applicant had not provided information to demonstrate that he satisfied cl 020.211 because he had not addressed the time of decision requirement, the Tribunal wrote to the applicant via his representative on 19 January 2024 and noted that the information had been considered but the applicant must satisfy the criteria at the time of decision. The letter noted that the information provided was directed to the time of visa application requirement, nor the time of decision requirement. The applicant was asked to address the time of decision criteria and to provide that information by 24 January 2024 which was the due date for the information requested under s 359(2) of the Act.

33. The applicant did not respond to this letter or provide the Tribunal with the information it requested. The applicant did not claim that he presently held a Bridging A (Class WA) or Bridging B (Class WB) visa to satisfy the time of decision requirement.

    FINDINGS AND REASONS

34. The issue in the review is whether the applicant satisfies cl 020.211.

35. If the Tribunal finds that the applicant satisfies cl 020.211 the correct or preferable decision is to set aside the delegate decision refusing to grant the visa and remit the visa application back to the delegate for reconsideration with a direction that the applicant satisfies cl 020.211.

36. If the Tribunal finds that the applicant does not satisfy cl 020.211 the correct or preferable decision is to affirm the decision of the delegate refusing to grant the visa.

37. For the following reason, the Tribunal has decided to affirm the decision.

38. The Tribunal accepts that the visa applicant held a Bridging B (Class WB) visa at the time he made an application for another Bridging B (Class WB) visa. He satisfies the time of application criteria. Indeed, the delegate found that this was the case.

39. However, the evidence is that the applicant ceased holding a Bridging B (Class WB) visa by the time the delegate made a decision on the visa application. There is no evidence that subsequent to that decision and at the time the Tribunal is making a decision on the review, the applicant has been granted either a Bridging B (Class WB) visa or Bridging A (Class WA) visa. He is therefore unable to satisfy cl 020.211 at the time of decision.

    DECISION

40. The Tribunal affirms the decision of the delegate dated 11 July 2023 refusing to grant the applicant a Bridging B (Class WB) visa.

    Nathan Goetz

    
    

    Member