Surjit Singh (Migration)

[2020] AATA 5961

Surjit Singh (Migration) [2020] AATA 5961 (17 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Surjit Singh

CASE NUMBER:  1900481

DIBP REFERENCE(S):  BCC2018/5571754 BCC2019/3685599

MEMBER:Michelle East

DATE:17 December 2020

PLACE OF DECISION:  Perth

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

Statement made on 17 December 2020 at 10:55am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – continue satisfaction of primary criteria – unlawful non-citizen – departed Australia – ongoing application for judicial review – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.221, 050.222

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 applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act)

2. The applicant applied for the visa on 11 December 2018. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, which are set out in Part 050 of Schedule 2 to the Migration Regulations (the Regulations). Relevantly to this matter, the primary criteria include cl.050.211, cl.050.212, cl.050.221 and cl.050.222.

3. The decision to refuse to grant the visa was made on 19 December 2018 on the basis that the requirements in cl.050.222 were not satisfied because the applicant had not been interviewed by an authorised officer.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicant continues to meet the time of application criteria at the time of decision.

   Whether the applicant continues to satisfy the time of application criteria - cl.050.221

6. Movement records obtained by the Tribunal on 13 November 2020 indicate the applicant departed Australia on 30 January 2020 and has remained offshore.

7. On 18 November 2020 the Tribunal wrote to the applicant pursuant to section 359A of the Act inviting him to respond to potentially adverse information, namely:

   Movement records obtained by the Tribunal on 13 November 2020 indicate that you departed Australia on 30 January 2020 and are currently offshore.  A copy of the movement records are attached for your reference.

   Our records do not indicate that you have an ongoing application for merits review in relation to a decision to cancel or not to revoke the cancellation of a visa, that you or the Minister have made an application for judicial review in particular circumstances or that you have made a first request for Ministerial intervention or determination in particular circumstances.

8. The Tribunal requested the applicant to respond on or before 2 December 2020.

9. The Tribunal is satisfied that the applicant has not provided any response.

10. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision.

11. The Tribunal is satisfied the applicant is currently offshore and therefore does not continue to satisfy the criteria in clause 050.211(1)(a), that is, he is not an unlawful non-citizen.  Furthermore, records indicate the applicant no longer has an ongoing application for judicial review. 

12. Therefore, the applicant no longer continues to satisfy the criteria set out in clauses 050.211 and 050.212 and does not meet cl.050.221.

13. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

14. The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant is not a relevant eligible non-citizen as set out in cl.051.211 of Schedule 2 to the Regulations and therefore does not meet the requirements for the grant of that visa.

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

    Michelle East
    Member