Sreenivas (Migration)

[2021] AATA 1172

Sreenivas (Migration) [2021] AATA 1172 (11 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Revathi SREENIVAS

CASE NUMBER:  1919133

DIBP REFERENCE(S):  BCC2019/3365957

MEMBER:Nathan Goetz

DATE:11 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Bridging A (Class WA) (Subclass 010) visa:

·cl.010.411 of Schedule 2 to the Regulations

Statement made on 11 March 2021 at 7:13pm

CATCHWORDS

MIGRATION – Bridging A (Class WA) visa – Subclass 050 (Bridging A) – applicant not in Australia – applicant returned to Australia – multiple entry visitor visa – decision under review remitted         

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 010.411

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 to refuse to grant the visa applicant a Bridging A (Class WA) Subclass 010 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a female citizen of India. On 25 June 2019 the applicant was onshore and applied for the bridging visa. The bridging visa was in connection with an application she made for an Aged Parent (Residence) (class BP) Aged Parent (subclass 804) visa.

3. On 3 July 2019 the applicant departed Australia.

4. On 4 July 2019 the delegate refused to grant the bridging visa on the basis that the applicant did not meet cl.010.411. This clause requires that the applicant is in Australia and not in immigration clearance at the time of decision.

5. On 7 July 2019 the applicant returned to Australia. The applicant was able to do so because she had been granted a multiple entry visitor visa on 15 July 2016 which was valid until 7 October 2019.

6. On 15 July 2019 the applicant applied to the Tribunal to review the refusal decision.

7. The Tribunal is required to invite the applicant to appear at a Tribunal hearing to give evidence and present arguments concerning the review application: s.360 of the Act. However, there is an exception to this statutory requirement if the Tribunal is able to make a decision in the applicant's favour on the basis of the material before it: s.360(2)(a).

8. Having considered the matter, the Tribunal was able to make a decision without inviting the applicant to appear at a Tribunal hearing.

   FINDINGS AND REASONS

9. The issue in the present case is whether the applicant meets cl.010.411.

10. For the following reason, the Tribunal has concluded that the matter should be remitted for reconsideration.

11. The delegate made a decision on 4 July 2019 that the applicant did not meet cl.010.411 because as at 4 July 2019 the applicant was not in Australia. The delegate was correct to make this finding.

12. However, as noted above, the applicant returned to Australia on 7 July 2019. The applicant then applied to the Tribunal to review the refusal decision.  The applicant has remained in Australia since that time and was granted another bridging visa by the Department on 27 September 2019 presumably in connection with the review application. There is no information to suggest that the applicant is in immigration clearance.

13. The Tribunal steps into the shoes of the original decision-maker. The issue is whether, as at today’s date, the applicant meets cl.010.411. The applicant is in Australia at the time of the Tribunal’s decision. Accordingly, the applicant meets cl.010.411.

    DECISION

14. The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Bridging A (Class WA) (Subclass 010) visa:

    ·cl.010.411 of Schedule 2 to the Regulations

    Nathan Goetz
    Member