Singh (Migration)

[2024] AATA 85

Singh (Migration) [2024] AATA 85 (4 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Simratbir Singh

REPRESENTATIVE:  Mr Atul Kapoor

CASE NUMBER:  2302741

HOME AFFAIRS REFERENCE(S):          BCC2016/3352998

MEMBER:Member Nathan Goetz

DATE:4 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision of the delegate dated 22 February 2023 refusing to grant the applicant a Bridging B (Class WB) visa and remits the visa application back to the delegate for reconsideration, with a direction that the applicant satisfies the following criterion for the grant of the visa:

·Clause 020.212(2)(b) of Schedule 2 to the Migration Regulations 1994 (Cth).

Statement made on 04 January 2024 at 3:58pm

CATCHWORDS
MIGRATION – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – issued in association with applicant for contributory parent visa – that visa refused and application for review in progress and not finally determined – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 360(1), (2)(a), (3), 368(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 020.212(2)(b), 020.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for merits 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 registered migration agent 0741660.

   BACKGROUND

3. The applicant identifies as a male citizen of India presently located in Australia.

4. On 17 February 2023 the applicant applied for the bridging visa, which was associated with a Contributory Parent (Subclass 143) visa that was lodged on 7 October 2016. The applicant applied for the contributory parent visa on the basis that he is a member of the family unit of a primary applicant for that visa. The visa was sponsored by Ms Sumandeep Kaur, who is identified as the applicant’s sister.

5. At the time the applicant applied for the bridging visa, the criteria for the grant of the Bridging B (Class WB) visa were set out in Subclass 020 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

6. On 22 February 2023 the delegate refused to grant the applicant the Bridging B (Class WB) visa.

7. On 27 February 2023 the applicant applied to the Tribunal for merits review of the decision.

8. On 3 January 2024 the review was constituted to the Member.

9. Having reviewed the material, the Tribunal was satisfied that it could make a decision that was favourable to the applicant. This meant there was no longer a requirement to invite the applicant to appear at a Tribunal hearing: ss 360(2)(a), (3) of the Act.

10. Accordingly, the Tribunal has determined the review without inviting the applicant to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review: s 360(1) of the Act.

    CRITERIA FOR THE GRANT OF THE VISA

11. The delegate refused to grant the applicant the Bridging B (Class WB) visa on the basis that the applicant did not satisfy cl 020.212 of Schedule 2 to the Regulations.

    020.212 

    (1)  The applicant meets the requirements of subclause (2), (3), (4) or (5).

    (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)  the applicant wishes to leave and re-enter Australia during the processing of that application; and

    (d)  the Minister is satisfied that the applicant's reasons for wishing to do so are substantial.

    (3)  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 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, and the judicial review proceedings (including proceedings on appeal, if any) have not been completed; 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 applicant wishes to leave and re-enter Australia during the judicial proceedings; and

    (e)  the Minister is satisfied that the applicant's reasons for wishing to do so are substantial.

    (4)  An applicant meets the requirements of this subclause if:

    (a)  the applicant has made a valid application for a Partner (Migrant) (Class BC) visa; and

    (b)  the application has not been finally determined; and

    (c)  the applicant wishes to leave and re-enter Australia during the processing of that application; and

    (d)  the Minister is satisfied that the applicant's reasons for wishing to do so are substantial.

    (5)  An applicant meets the requirements of this subclause if:

    (a)  the applicant has made a valid application for a Partner (Migrant) (Class BC) 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; 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 wishes to leave and re-enter Australia during those proceedings; and

    (f)  the Minister is satisfied that the applicant's reasons for wishing to do so are substantial.

12. The applicant is required to satisfy cl 020.212 at the time of visa application: cl 020.21 as well as at the time a decision is made: cl 020.221.

13. The delegate decision record details that the Contributory Parent (Subclass 143) visa was refused by a delegate on 8 February 2023 and therefore was finally determined, meaning that the applicant no longer satisfied cl 020.212(2)(b) at the time the delegate made a decision on 22 February 2023. As the applicant failed to satisfy cl 020.212(2)(b), he failed to satisfy cl 020.212(2) in its entirety.

14. The delegate decision record did not address whether the applicant satisfied cl 020.212(3), (4) or (5) despite the applicant only having to meet one of the paragraphs of cl 020.212.

    CONSIDERATION OF EVIDENCE

15. In the visa application form, the applicant indicated that the bridging visa was associated with an application for a substantive visa, namely a 143 – Contributory Parent visa which was lodged in Australia. The applicant provided the file reference for that visa application.

16. The purpose of the bridging visa application was to allow the applicant permission to depart Australia and return to Australia after a proposed visit to India between 27 February 2023 and 27 August 2023.

17. The delegate refused to grant the visa on 22 February 2023 because department records demonstrated that a delegate refused to grant the 143 – Contributory Parent visa on 8 February 2023. According to the delegate decision record, this visa application was ‘finally determined.’

18. Under s 5 of the Act, a visa application is ‘finally determined’ when the decision that has been made is not, or is no longer, subject to any form of review, or the period within which a review could have been instituted has ended without a review having been instituted as prescribed. The Act also further provides that an application is finally determined when a decision on the review in respect of the application when a written decision is made under s 368(2) of the Act in respect of a Part 5 reviewable decision.

19. The delegate decision record suggests that no merits review application had been made in respect of the decision to refuse to grant the applicant a 143 – Contributory Parent visa. However, on 16 February 2023 the sponsor applied to the Tribunal for review of the decision refusing to grant the 143 – Contributory Parent visa: AAT 2302046. That review remains outstanding.

    FINDINGS AND REASONS

20. The issue in this review is whether the applicant satisfies cl 020.212(b).

21. If the Tribunal finds that the applicant satisfies cl 020.212(b), the correct or preferable decision is to set aside the delegate decision and remit the visa application back to the delegate for reconsideration, with a direction that the applicant satisfies cl 020.212.

22. If the Tribunal finds that the applicant does not satisfy cl 020.212, the correct or preferable decision is to affirm the decision refusing to grant the applicant the Bridging B (Class WB) visa.

23. For the following reason, the Tribunal has determined that the visa application should be remitted for reconsideration.

24. The evidence is that the 143 – Contributory Parent visa application, to which the Bridging B (Class WB) visa is associated, has not been finally determined. It has not been finally determined because the sponsor lodged a review of the decision concerning that visa on 16 February 2023, which was one day prior to the applicant lodging the application for the Bridging B (Class WB) visa on 17 February 2023.

25. It therefore follows that at the time the applicant applied for the Bridging B (Class WB) visa on 17 February 2023, the 143 – Contributory Parent visa application had not been finally determined. As the Tribunal has not made a decision on the 143 – Contributory Parent visa application, it follows that the 143 – Contributory Parent visa application has not been finally determined at the time a decision is being made on the Bridging B (Class WB) visa.

    CONCLUSION

26. For the reason given above, the Tribunal is satisfied that the applicant has made a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and that application has not been finally determined.

27. Therefore, the applicant satisfies cl 020.212(2)(b).

    DECISION

28. The Tribunal sets aside the decision of the delegate dated 22 February 2023 refusing to grant the applicant a Bridging B (Class WB) visa and remits the visa application back to the delegate for reconsideration, with a direction that the applicant satisfies the following criterion for the grant of the visa:

    · Clause 020.212(2)(b) of Schedule 2 to the Migration Regulations 1994 (Cth).

    Nathan Goetz

    
    

    Member