Singh (Migration)

[2019] AATA 948

Singh (Migration) [2019] AATA 948 (20 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaswinder Singh

CASE NUMBER:  1805086

DIBP REFERENCE(S):  BCC2015/1391094

MEMBER:Stephen Conwell

DATE:20 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 20 March 2019 at 1:41pm

CATCHWORDS
MIGRATION – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – failure to attend Tribunal hearing – holder of relevant bridging visas at time of application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A
Migration Regulations 1994 (Cth), Schedule 2, cl 020.211

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 for Immigration on 5 February 2018 to refuse to grant the visa applicant a Bridging B (Class WB) Subclass 020 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the Bridging visa on 30 January 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria in regulation 020.211.

3. The applicant was represented in relation to the review by his registered migration agent.

4. On 5 February 2019 the Tribunal wrote to the applicant inviting him to attend a hearing on 4 March 2019. Due to unforeseen circumstances the Tribunal was unable to conduct the hearing as scheduled and the applicant was advised accordingly. 

5. On 4 March 2019 the Tribunal again wrote to the applicant inviting him to attend a rescheduled hearing on 20 March 2019. The applicant was advised that if he did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without any further notice. 

6. The Tribunal also sent the applicant telephone SMS Reminders about the hearing five business days and one business day before the scheduled hearing.  No response to the hearing invitation was received and the review applicant did not appear before the Tribunal on the hearing day and at the scheduled time and place.

7. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been ‘returned to sender’, and that separate SMS reminders were also sent to the review applicant about the hearing. In the circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to determine the review without taking any further action to enable the applicant to appear before it.

8. The visa applicant applied for a Bridging B (Class WB) on 30 January 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria in regulation 020.211.

9. The applicant is a citizen of India. He first arrived in Australia in March 2007 holding a subclass 572 visa. He was granted a Bridging visa A (Class WA) on 14 May 2015 during the processing of his application for a subsequent sub-class 572 Student visa. That visa application was refused on 16 July 2015.

10. He applied to the Tribunal to review the decision to refuse his visa application. He was invited to appear before the Tribunal on 4 May 2017 but did not appear at the scheduled hearing.  His application to the Tribunal was subsequently dismissed on 22 May 2017.

11. On 30 January 2018 the applicant lodged an application for a subclass 020 Bridging visa.

12. The delegate who considered the application noted that cl.020.211 requires the applicant to be the holder of a Bridging A (Class WA) visa or a Bridging B (Class WB) visa at the time of application. The delegate found that as the applicant did not hold either of those classes of visas he did not meet the criteria for the grant of the subclass 020 Bridging visa and by decision of 5 February 2018, refused the application.

13. An application for a review of that decision was lodged with the Tribunal on 26 February 2018.  A copy of that decision accompanied his application.

14. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant meets the criteria in cl.020.211 for the grant of a subclass 020 Bridging B visa. This requires the applicant to be the holder of a Bridging A visa or Bridging B visa at the time of the application. A visa cannot be granted unless the relevant criteria specified in the Migration Act and the Migration Regulations are satisfied.

16. Pursuant to regulation 020.211 one of the primary criteria to be satisfied at the time of application for a Bridging visa B is that:

    The applicant is the holder of:

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

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

17. On the evidence before it the Tribunal finds that at the time he applied for a Bridging visa B, the applicant was not the holder of a Bridging visa A or Bridging visa B. In fact he did not hold any Bridging visa.

18. As regulation 020.211 is not met by the applicant, the Tribunal finds the criteria for the grant of a Bridging B (Class WB) (Subclass 020) visa are not met by the applicant.

19. Accordingly, the decision under review must be affirmed.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a Bridging B (Class WB, sub-class 020) visa.

    Stephen Conwell
    Member