Ramphal (Migration)

[2022] AATA 2952

Ramphal (Migration) [2022] AATA 2952 (23 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jayshree Ramphal
Ms Dhishali Ramphal

REPRESENTATIVE:  Mr Satish Patel

CASE NUMBER:  2210218

HOME AFFAIRS REFERENCE(S):          BCC2021/1110976

MEMBER:Nathan Goetz

DATE:23 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to refuse to grant the applicants Bridging A (Class WA) visas

Statement made on 23 August 2022 at 10:50am

CATCHWORDS
MIGRATION – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – applicants did not satisfy criteria for grant of visa – ground for refusal conceded and consent to decision without hearing – visa history – application for contributory parent visa in progress – request for referral for ministerial consideration not granted – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359(2), 360(1), (2)(b), (3)
Migration Regulations 1994 (Cth), Schedule 2, cl 010.211

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 under s 65 to refuse to grant the applicants Bridging A (Class WA) visas under the Migration Act 1958 (Cth) (the Act)

2. The applicants were represented in the review by registered migration agent 0000548.

   BACKGROUND

3. The applicants applied for the visas on 30 June 2022. At the time the applicants applied for the visas, the Bridging A (Class WA) contained one subclass: Subclass 010. The provisions in respect of that subclass are contained in Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. On 12 July 2022 the delegate refused to grant the visas on the basis that the applicants did not satisfy cl 010.211 of Schedule 2 to the Regulations.

5. On 14 July 2022 the applicants applied to the Tribunal for review of the decision.

6. On 11 August 2022 the Tribunal wrote to the applicants for two reasons.

7. The first reason was to invite the applicants under s 360(1) of the Act to appear at a Tribunal hearing scheduled for 29 August 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 applicants to appear at a Tribunal hearing because the Tribunal considered that it should not decide the review in the applicant’s favour on the basis of the material it had.

8. The second reason was to invite the applicants under s 359(2) of the Act to provide the Tribunal with information. The letter detailed that the delegate refused to grant the visas on the basis that the applicants did not satisfy cl 010.211 and invited the applicants to provide the Tribunal with information to demonstrate that they satisfied this clause.

9. On 18 August 2022 the applicants provided the Tribunal with a completed ‘Response to hearing invitation form,’ letters from the applicants and a written submission from the representative.

10. The Tribunal subsequently wrote to the applicants to clarify whether they were conceding that they did not satisfy the criteria for the grant of the visa.

11. On 22 August 2022 the applicants responded to the Tribunal and conceded that they did not meet the criteria for the visa. The response indicated that the purpose of the review application was for a decision to be made so that the applicants were able to request the Minister exercise powers under s 351 of the Act to substitute the Tribunal decision with a decision made more favourable to the applicants. The applicants consented to the Tribunal deciding the review application without holding a Tribunal hearing and requested that the Tribunal recommend the case to the Minister.

12. As the applicants consented to a decision without the applicants appearing before the Tribunal, the obligation to invite the applicants to appear at a Tribunal hearing ceased: ss 360(2)(b), 360(3).

13. The Tribunal hearing was cancelled, and the Tribunal decided the review.

    CRITERIA FOR THE VISA

14. Clause 010.211 provides the following:

    (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).

15. The applicants are required to satisfy cl 010.211 at both the time of the visa application and at the time a decision is made: cl 010.21 and cl 010.221.

    CONSIDERATION

    Visa application form

16. The applicants declared in the bridging visa application form that they were seeking a bridging visa ‘for other reasons.’

17. The form identifies that the applicants are Ms Jayshree Ramphal, a 54 year old female citizen of Mauritius presently located in Australia and his 18 year old daughter Ms Dhishali Ramphal.

18. In the section requesting details for why the applicants applied for the bridging visa, the following was provided:

19. “I have applied for contributory parent visa subclass 143 onshore in Australia and I have included my daughter Dhishali Ramphal into (the visa application). We held subclass 457 visas when we applied for that visa. Our application for parent (visa) has not been finally determined by the Department.

20. We have compelling and compassionate reasons to request (the bridging visa) to remain in Australia.

21. My daughter has been studying in Australia since Year 8 and completed Year 12 in Australia. She has been offered (a place) at the University of Western Australia to study Bachelor of Biomedical Science. It is a three-year full-time course. She may need to travel abroad while studying. We request you to grant (the visa) due to compelling and compassionate reasons and also please consider our application on humanitarian grounds.”

22. Attached to the visa application form were documents to support the claims concerning the university position, and the grants of the previous visas.

    Substantive visa application history of the applicants

    Ms Jayshree Ramphal

23. This applicant first arrived in Australia on 10 May 2008 and has travelled in and out of Australia on multiple occasions. She last arrived in Australia on 18 March 2015 and has remained in Australia from that date.

24. Her substantive visa history is as follows:

25. The applicant was granted Higher Education Sector visa (subclass 573) on 7 May 2008. That visa ceased on 19 December 2011.

26. On 19 December 2011 the applicant was granted a Temporary Graduate visa (Subclass 485). That visa ceased on 19 June 2013.

27. On 23 August 2013 the applicant was granted a Higher Education Sector visa (subclass 573). That visas ceased on 7 March 2014.

28. On 3 March 2015 the applicant was granted a Higher Education Sector visa (subclass 573). That visa ceased on 13 June 2016.

29. On 13 June 2016 the applicant was granted a Temporary Work (Skilled) visa (subclass 457). That visa ceased on 13 December 2017.

30. On 20 June 2018 the applicant was granted a Temporary Work (Skilled) visa (subclass 457). That visa ceased on 20 June 2022.

31. On 18 May 2021 the applicant applied for a contributory parent visa. No decision has been made by a delegate to date.

    Ms Dhishali Ramphal

32. This applicant first arrived in Australia on 10 May 2008 and has travelled in and out of Australia on multiple occasions. She last arrived in Australia on 9 November 2016 and has remained in Australia from that date.

33. Her substantive visa history is as follows:

34. The applicant was granted Higher Education Sector visa (subclass 573) on 7 May 2008. That visa ceased on 18 July 2011.

35. On 8 June 2011 the applicant was granted a Tourist visa (subclass 676). That visa ceased on 18 July 2011.

36. On 13 June 2016 the applicant was granted a Temporary Work (Skilled) visa (subclass 457). That visa ceased on 13 December 2017.

37. On 8 June 2011 the applicant was granted a tourist visa. She arrived in Australia on 19 June 2011 holding that visa. On 18 July 2011 that visa ceased, and the applicant departed Australia the same day.

38. On 13 June 2016 the applicant was granted a skilled visa. She arrived in Australia holding that visa on 9 November 2016. That visa ceased on 13 December 2017.

39. On 20 June 2018 the applicant was granted a Temporary Work (Skilled) visa (subclass 457). That visa ceased on 20 June 2022.

40. On 18 May 2021 the applicant applied for a contributory parent visa. No decision has been made by a delegate to date.

    FINDINGS AND REASONS

41. For the following reasons, the Tribunal must affirm the decision of the delegate to refuse to grant the visas.

42. The delegate decision details the factual basis upon which the applicants did not satisfy any of the paragraphs of cl 010.211. Those findings are unnecessary to repeat.

43. The applicants were asked to provide information to the Tribunal to demonstrate that they satisfied cl 010.211. They conceded they did not. It is not the Tribunal’s task to make the applicants case for them.

44. The Tribunal is satisfied that the concession made by the applicants that they do not satisfy cl 010.211 is conclusive evidence that they do not meet the criteria for the grant of the visas.

45. Accordingly, the Tribunal is not satisfied that the applicants satisfy cl 010.211(2), (3). (4), (5) or (6). The visas must be refused on this basis.

    DECISION

46. The Tribunal affirms the decision to refuse to grant the applicants Bridging A (Class WA) visas.

    REQUEST FOR THE TRIBUNAL TO REFER THE MATTER TO THE MINISTER FOR CONSIDERATION OF POWERS UNDER S 351 OF THE ACT.

47. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicants, whether or not the Tribunal had the power to make that other decision.

48. The Minister does not have a duty to consider whether to exercise this power in respect of any decision, whether the Minister is requested to do so by the applicant or by any other person, or in any other circumstances.

49. The Tribunal does not believe that it is appropriate to ‘refer’ any matter to the Minister. There is no statutory power or discretionary power to do so. The Tribunal’s role is not to be an advocate for the delegate or the applicants. The Tribunal’s only task is to determine whether the applicants satisfy the criteria upon which the delegate refused to grant the visas. The applicants can apply to the Minister directly to exercise powers under s 351 of the Act.

    Nathan Goetz
    Member