Singh (Migration) - [2025] ARTA 425

SINGH (MIGRATION) [2025] ARTA 425 (21 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Princelovenoor Singh
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2501697

Tribunal:General Member N Goetz
Place:Melbourne
Date: 21 February 2025
Decision:The Tribunal affirms the decision dated 8 January 2025 under review.

Statement made on 21 February 2025 at 12:18pm
CATCHWORDS
MIGRATION – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – current substantive visa application – applicant was outside of Australia at lodgement – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024, s 79
Migration Act 1958, ss 65, 348
Migration Regulations 1994, Schedule 2, cls 010.211, 010.221, 500.511; r 2.21
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for merits review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Migration Act) by a delegate of the respondent who refused to grant the applicant a Bridging A (Class WA) Subclass 010 visa.
The Department file reference is BCC2024/4857135.
The applicant was represented in the review by a registered migration agent.
The respondent is taken to be a non - participating party in the review under s 348A of the Migration Act.
Background, procedural history and criteria for the grant of the visa
On 26 February 2020 the applicant was offshore and granted a student visa. The applicant arrived in Australia on 6 March 2020 holding this visa which was valid until 2 December 2022.
On 30 September 2022 the applicant applied for a temporary graduate visa. That same day, the applicant was granted a Bridging A (Class WA) Subclass 010 visa to regularise his migration status in Australia pending the temporary graduate visa application being finally determined. On 2 December 2022 the applicant was granted the temporary graduate visa which was valid until 2 December 2024.
During the currency of the temporary graduate visa, the applicant:
· Departed Australia on 17 February 2024 and returned to Australia on 4 March 2024.
· Departed Australia on 5 September 2024 and returned to Australia on 11 September 2024.
On 6 September 2024, the applicant was offshore and applied for a student visa. On 4 December 2024 the delegate refused to grant the student visa.
On 28 November 2024 the applicant was onshore and applied for a visitor visa. On 28 November 2024, the applicant was granted a Bridging A (Class WA) Subclass 010 visa to regularise the applicant’s migration status pending the visitor visa application being finally determined. On 3 February 2025 the applicant was granted the visitor visa and the bridging visa ceased. The visitor visa is valid 2 March 2025.
On 2 December 2024 the applicant applied for the Bridging A (Class WA) Subclass 010 visa that is the subject of review. According to the bridging visa application form, the applicant is a male citizen of India presently located in Australia.
At the time the student visa application was lodged, Class WA contained one subclass, namely Subclass 010. The criteria for the grant of the Subclass 010 visa are contained in cl 010 of Scheduled 2 to the Migration Regulations 1994 (Cth) (the Migration Regulations).
On 8 January 2025 the delegate refused to grant the applicant the Subclass 010 visa, finding that the applicant did not satisfy cl 010.211 of Schedule 2 to the Migration Regulations. This clause provides the following:
010.211
(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).
The applicant is required to satisfy the criteria at the time of visa application: cl 010.21.
The applicant is required to satisfy the criteria at the time of decision: cl 010.221.
On 16 January 2025 the review application was lodged with the Tribunal.
On 13 February 2025 the Tribunal wrote to the applicant via his representative to:
· Invite the applicant to appear at a hearing scheduled to occur at 10:00am on 21 February 2025 via MS Teams. The Tribunal determined that a hearing conducted via MS Teams was appropriate in all the circumstances of the review.
· Provide by 4pm 20 February 2025, pursuant to s 79 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act), a statement of facts and contentions addressing questions raised by the Tribunal.
The applicant’s representative provided a response to the direction issued under s 79 of the ART Act and also sought a postponement of the hearing because the representative was overseas. The Tribunal considered the request for postponement but declined to postpone the hearing. The Tribunal’s assessment was that the applicant’s representative could appear at the hearing by MS Teams notwithstanding the fact that the representative was out of the country.
On 21 February 2025 the hearing commenced and concluded. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
CONSIDERATION AND FINDINGS
The issue in the review is whether the applicant satisfies cl 010.211 of the Migration Regulations.
If the Tribunal finds the applicant satisfies cl 010.211, the correct or preferable decision is to set aside the decision refusing to grant the applicant the visa and to remit the visa application for reconsideration.
If the Tribunal finds the applicant does not satisfy cl 010.211, the correct or preferable decision is to affirm the decision under review.
The Tribunal considered all the material on the Department file relevant to whether the applicant satisfies the criteria for the grant of the visa.
The Tribunal considered all the material on the Tribunal file relevant to whether the applicant satisfies the criteria for the grant of the visa, including the oral evidence and submissions made at the hearing.
For the following reasons, the correct or preferable decision is to affirm the decision under review.
A significant amount of argument was directed towards the contention that an application for a bridging visa was lodged on 6 September 2024 when the student visa application was lodged that day and that this bridging visa application should have been considered before the student visa application was determined. It was submitted that the bridging visa application disappeared from the applicant’s ImmiAccount.
Whether the applicant lodged a bridging visa on 6 September 2024 is irrelevant to the Tribunal’s task. The Tribunal is considering the decision dated 8 January 2025 refusing to grant the applicant a bridging visa which was lodged on 2 December 2024.
Time of application criteria – 010.21
At the time the applicant applied for the bridging visa on 2 December 2024, he was required to satisfy cl 010.211, which contains several subclauses. The applicant is required to satisfy one of those subclauses.
It was submitted that the applicant satisfied cl 010.211(2) because at the time the bridging visa was lodged, the applicant had made a substantive visa application, namely the student visa application, which had not been finally determined. The evidence is that the student visa application was lodged on 6 September 2024 and was refused on 4 December 2024, so at the time the bridging visa application was lodged on 4 December 2024, the application had not been finally determined.
Concerning whether the student visa application met the requirement contained in cl 010.211(a) that ‘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, it was submitted that, although the applicant was offshore at the time the visa application was lodged on 6 September 2024 (the applicant having departed Australia on 5 September 2024 and returned on 11 September 2024), the student visa is a visa capable of being granted while the applicant is either in or outside of Australia and therefore satisfies cl 010.211(2)(a).
The Tribunal was directed to cl 500.511 of Schedule 2 to the Migration Regulations, which relates to student visas in the 500 subclass which the applicant applied for on 6 September 2024. The clause provides that a student visa is a temporary visa that permits the holder to travel to, enter and remain in Australia until a date specified by the Minister.
The Tribunal is not satisfied by the fact that a student visa can be granted onshore or offshore means that cl 010.211(a) is satisfied. Clause 010.211(a) makes it clear that, for the purpose of that section, the applicant needs to have made, in Australia, an application for a substantive visa. ‘In Australia’ is defined in the Migration Regulations to mean ‘in the migration zone’ which is defined to mean that area consisting of the States, the Territories, Australian resource installations and Australian sea installations.
While the clause would be better drafted if it read that ‘an applicant in Australia has made a valid application’ the Tribunal’s assessment is that the clause as currently drafted should be read as that meaning because it would be absurd to read the clause as meaning that an applicant could be outside of Australia but the application for the substantive visa needed to be lodged in Australia.
As the evidence demonstrates that the applicant was outside of Australia at the time the student visa was lodged on 6 September 2024, it follows that the applicant does not satisfy the requirements in cl 010.211(a) concerning the visa application made for the student visa.
However, the evidence also demonstrates that the applicant applied for a visitor visa on 28 November 2024. This visa was ultimately granted on 2 February 2024. At the time the applicant applied for the bridging visa that is the subject of the review on 2 December 2024, that visitor visa application had not been finally determined as required by cl 010.211(b). The evidence is also that at the time the applicant applied for the bridging visa on 2 December 2024, he held the temporary graduate visa, as that was to cease that day. The evidence is that the applicant applied for a bridging visa in respect of that visitor visa application.
Therefore, for the purpose of cl 010.211(2), the applicant’s visitor visa application satisfied that clause at the time of bridging visa application on 2 December 2024.
Although satisfied that cl 010.211(2) is met, for the sake of completeness, it is proper to consider the remaining paraphs of cl 010.211 for the time of application requirement.
The applicant does not satisfy cl 010.211(3) because at the time the bridging visa application was lodged on 2December 2024, no substantive visa application was refused as required by cl 010.211(3)(aa).
The applicant does not satisfy cl 010.211(4) because there is no evidence that the bridging visa held by the applicant when he applied for the bridging visa on 2 December 2024 was subject to conditions 8101, 8102, 8103, 8104, 8105, 8107, 8108, 8111. 8112, 8115, 8547, 8607 or 8608.
The applicant does not satisfy cl 010.211(5) or (6) because those sections concern visa applications for visas that the applicant has not applied for.
Time of decision criteria – cl 010.221
At the time the Tribunal is making a decision, namely 21 February 2025, the following events have occurred.
·     On 2 December 2024 the applicant’s temporary graduate visa ceased.
·     On 3 February 2025, the application for the visitor visa lodged on 28 November 2024 was finally determined because the applicant was granted the visitor visa which is valid until 2 March 2025.
·     On 3 February 2025, the applicant’s Bridging A (Class WA) Subclass 101 visa granted on 28 November 2024 ceased because the applicant was granted the visitor visa.
It was conceded at the hearing that the applicant had no outstanding substantive visa applications that had not been finally determined, and there is no evidence of any judicial review proceedings concerning decisions made in respect of substantive visa applications.
During the hearing, the Tribunal was asked to postpone making a decision until the following day to allow the representative and the applicant to confer about the review. The Tribunal declined to do so because the Tribunal had issued a direction on 13 February 2025 which requested a statement of facts and contentions addressing the criteria under review which noted the requirement that the time of visa application and time of decision criteria both needed to be satisfied. The Tribunal’s assessment was that the applicant and the representative had adequate time to turn their minds to the issue for determination. Instead, the hearing was stood down for 15 minutes to give the applicant and the representative time to confer.
When the hearing resumed, the Tribunal was requested to delay making a decision on the review to give the applicant time to lodge a substantive visa application, with a view to the applicant then being to satisfy cl 050.211 at the time of decision. It was also submitted that the delay was appropriate in circumstances where the applicant was disadvantaged because of the refusal of the student visa and the circumstances of not being issued a bridging visa when the student visa application was made on 6 September 2024.
The Tribunal queried why no substantive visa application had been made to date, noting that the applicant held a visitor visa from 3 February 2025. The Tribunal was told that the applicant was waiting for the review of the bridging visa refusal and the representative was overseas.
The Tribunal determined that it was not appropriate to delay making a decision on the review for the following reasons:
First, it was not appropriate to delay making decisions on review to enable a person to possibly meet criteria in the event that some possible future action my them is required to be undertaken.
Second, the applicant and representative would have been aware from at least 13 February 2025 through the issue of the direction under s 79 of the ART Act that the time of decision requirement would be in issue.
Third, the wording of cl 010.211 is drafted concerning ‘that application’ meaning that, at the time of decision, an outstanding substantive visa application needs to be the substantive visa application that was applicable at the time the bridging visa was applied for on 2 December 2024. In those circumstances, a new substantive visa application lodged shortly after the hearing, but prior to decision on review, would not satisfy the time of decision criteria in any event.
Fourth, there would be nothing to stop the applicant lodging a substantive visa application prior to the 2 March 2025, so there was no material benefit to the applicant by delaying the decision.
CONCLUSION
For the reasons given above, the applicant does not satisfy cl 010.211.
DECISION
The Tribunal affirms the decision dated 8 January 2025 under review.
Date(s) of hearing: 21 February 2025
Representative for the Applicant: Mr Jamil Shah (MARN: 0324672)