Zhong (Migration)

[2024] AATA 3640

Zhong (Migration) [2024] AATA 3640 (2 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yucheng Zhong
Mrs Siyue Dao
Miss Ziqi Zhong

REPRESENTATIVE:  Mr Harry Cao, with Mr Lorenzo Boccabella

CASE NUMBER:  2206887

HOME AFFAIRS REFERENCE:               BCC2019/93334

MEMBER:James Silva

DATE:2 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Bridging B (Class WB) visas.

Statement made on 02 April 2024 at 12:38pm

CATCHWORDS
MIGRATION – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – not holders of Bridging A or B visa at time of decision – unlawful non-citizens since last bridging visa ceased – claims that two most recent bridging visas not ceased and department records incorrect – application history for substantive and bridging visas, with third applicant child born while applications in progress – two applications for two substantive visas – whether bridging visa application associated with particular one or both applications – one application finally determined, the other remitted on review – multiple references to both ‘a’ and ‘the’ substantive visa application – second bridging visa application specified one application but visa issued in association with the other – interpretation to best achieve purposes of Act to allow person to remain until substantive application finally determined – no satisfaction that grant made in error – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 78(2)
Migration Regulations 1994 (Cth), r 2.08, Schedule 2, cls 020.211, 020.212(2), 020.221, 050.511(1)(b)
Acts Interpretation Act 1901 (Cth), s 15AA

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Bridging B (Class WB) visas under s.73 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the bridging visas on 21 April 2022. Class WB contains one subclass (020) and is for holders of a Bridging visa A or Bridging visa B who have ‘substantial reasons’ for needing to travel out of Australia while their substantive visa application is being processed or while judicial proceedings are on foot. This is the only Bridging visa which permits a holder to re-enter Australia.

3. The delegate refused to grant the visas on 4 May 2022, on the basis that the applicants met cl.020.212(2) at the time of application as they held Bridging B visas granted on 23 March 2022; but they did not meet it at the time of decision, and therefore did not satisfy cl.020.221.

4. The applicants were represented in relation to the review by Mr Harry Cao of MCA Lawyers; the Tribunal agreed for their barrister Mr Lorenzo Boccabella to present legal arguments relating to the construction of sub-division 020.

5. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicants satisfy cl.020.221 at the time of decision, which reads: ‘The applicant continues to satisfy the criteria set out in clauses 020.211 and 020.212’. Relevantly, cl.020.211 reads: ‘The applicant is the holder of (a) a Bridging A (Class WA), or (b) a Bridging B (Class WB) visa.’

7. It is not in dispute that at the time of decision, on 4 May 2022, Department records[1] indicated that the applicants did not hold either Bridging A or Bridging B visas.

   [1] Including the Visa Entitlement Verification Online (VEVO) system and the Department’s Integrated Client Services Environment (ICSE) records

8. Basically, the applicants contend that the Department records are incorrect, as previously issued Bridging B visas have not ceased, at least in relation to some of the applicants. This mainly rests on the proper construction of cl.050.511.

   Background

9. The applicants are nationals of China (People’s Republic of China, PRC), a man aged 34, a woman aged 35 and their three-year-old daughter, who was born in Australia. The Tribunal refers to them as the applicant husband, the applicant wife and the applicant child, for convenience.

10. The applicants’ migration histories, as set out in submissions and other materials before the Tribunal, are essential background.

    §  The adult applicants first arrived in Australia on 6 May 2014, as the holders of visitor visas (subclass 600). On 10 December 2014[2], they were granted student visas (subclass 573), which ceased on 15 March 2017.

    §  On 30 September 2016, they were granted Bridging A visas, which ceased on 14 January 2020.

    §  The applicants have held several successive Bridging B visas. The Tribunal records the dates of the visa grant (or in effect) and cessation, and assigns to them a number, for ease of reference:

    ­   BVB-1: Both adult applicants, in effect from 14 January 2020. The recorded cessation date[3] is 21 May 2021 for the applicant husband, and 9 March 2022 for the applicant wife (in each instance, due to the grant of further Bridging B visas).

    ­   BVB-2, granted to the applicant husband on 21 May 2021 (recorded cessation date of 9 March 2022); and

    ­   BVB-3, granted to the adult applicants on 9 March 2022 (recorded cessation date of 22 April 2022).

    [2] Department records give the date of the student visa grant for the wife as 11 December 2014, however, this is not material to the Tribunal’s assessment.

    [3] The Tribunal notes that the applicants dispute whether certain Bridging B visas in fact ceased on the stated date, and addresses these contentions later in this decision.

11. The applicant child was born on [Date]. At the time of birth, both parents held Bridging B visas. Department records indicate that she held, from birth, a Bridging B visa valid to 21 May 2021, and a second Bridging B visa valid to 9 March 2022. These appear to have been issued under s.78(2), on the basis that she was taken to have the same Bridging B visa (BVB-1) as her parents at the time of birth, and with regard to s.78(2), as her parents had lodged subclass 482 visa applications that were ongoing at the time.

12. According to Department records, the applicants have been unlawful since the expiry of their most recent Bridging B visas, namely 22 April 2022 for the applicant parents, and 9 March 2022 for the applicant child.

13. As detailed below, the applicants contend that the Bridging B visas granted to the adult applicants on 9 March 2022 (BVB-3), and to the applicant husband (and child) on 21 May 2021 (BVB-2) have in fact not ceased, and that the Department records are incorrect.

    Substantive visa applications and associated bridging visas: timeline

14. In the lead-up to and following the expiry of their student visas in March 2017, the adult applicants made several applications for substantive visas. Details follow:  

    Subclass 187 visa application and associated bridging visa grants (Bridging A visa and Bridging B visa)

15. The adult applicants applied for subclass 187 visas on 30 September 2016.

    §  It appears that the Bridging A visas dated 30 September 2016 were granted in association with the lodgement of a valid subclass 187 visa application. The Minister’s delegate refused that application on 7 February 2019. The adult applicants applied to the AAT for review of the decision on 25 February 2019.

    §  The adult applicants obtained their first Bridging B visas (BVB-1), on 14 January 2020, in association with the subclass 187 visa application. (The applicant child was taken to have been granted the same visa at birth.)

    §  Later, on 15 March 2022, the adult applicants withdrew the subclass 187 visa application for review, and the Tribunal finalised the matter as one in which it had no jurisdiction.

    Subclass 482 visa application

16. On 16 January 2020, the adult applicants applied for subclass 482 visas. (Note: at the time of that application, both adult applicants held Bridging B visas issued two days earlier, in association with their subclass 187 application.)

    §  The delegate refused to grant the visas on 15 April 2021. (The applicant child was not included in the decision.)

    §  The applicants lodged an application for review of the decision on 5 May 2021. (Note: although the decision related only to the adult applicants, the application for review included all of them).

    §  On 15 February 2024, the Tribunal (differently constituted) made a decision in respect of the applicant husband, remitting the application to the Department for reconsideration (relating to the sponsorship nomination). The Tribunal found that it did not have jurisdiction in relation to the other review applicants, as the applicant wife was not entitled to seek review and as the decision under review did not include the applicant child.

    Second Bridging B visa: BVB-2 (21 May 2021 – 9 March 2022)

17. The applicant husband applied for a Bridging B visa on 19 May 2021. On Form 1006, he nominated as the relevant substantive visa application ‘subclass 482’, although (as noted in the submissions in this matter) it included a file number relating to the ongoing subclass 187 application.

18. The Department granted the visa on 21 May 2021. The visa grant notice reads: ‘We have issued you a Bridging B visa while your Regional Employer Nomination (subclass 187) application is being processed’. It advised that the bridging visa permitted travel until 21 May 2022, and would cease: (a) if the substantive visa is granted, once it becomes active; and (b) if the substantive visa is invalid, refused or subject to a merits review outcome, after a specified period of time. The Tribunal notes that the relevant period is 35 days.

19. As the subclass 187 visa application was finally determined on 15 March 2022, it would appear that the applicant husband’s BVB-2 visa ceased on 22 April 2022 (for further analysis, see below).

    Third Bridging B visa: BVB-3 (9 March 2022 – 22 April 2022)

20. The applicants applied for Bridging B visas on 23 November 2021, nominating as the relevant substantive visa application ‘subclass 187’. On 9 March 2022, the Department issued Bridging B visas to the adult applicants. The visa grant notice states: ‘We have issued you a Bridging B visa while your Regional Sponsored Migration Scheme (subclass 187) application is being processed. It specifies that, ‘if your application is invalid, refused, withdrawn or has an outcome from a merits review decision’, the bridging visa will end after a specified period of time.’

21. The applicant child was not granted a Bridging B visa.

    §  The available evidence suggests that this was because she had not been included in the application or decision relating to the subclass 187 visa, as both were prior to her birth.

    §  In a statutory declaration dated 11 May 2022, Mr Cao recalls a conversation in early March 2022 with an unidentified Department officer. He alerted the officer to the applicant parents’ ongoing subclass 482 applications, and requested that the applicant child be added to that application pursuant to r.2.08, so that she could be granted a Bridging B visa. He records the officer acknowledging that the parents had ongoing applications for both subclass 187 and subclass 482 visas, but that she said ‘for some reason’ (which he appears not to have understood) that was not possible.

    §  Mr Cao’s account of this exchange appears to lay the groundwork for the applicants’ legal arguments about the effect of multiple ongoing substantive visa applications, in terms of eligibility for and the cessation of Bridging B visas. In any event, the chronology of this case suggests that the Department officer may have been referring to the fact that, as of 8 March 2022 or so (when the conversation took place), there had been a decision to refuse to grant the applicant parents subclass 482 visas, but no decision in relation to the child. As noted in Mr Cao’s statutory declaration, the decision to refuse to grant the applicant child a subclass 482 visa was made several weeks later, on 30 March 2022.

22. As noted above, the applicant parents withdrew the application for review of the subclass 187 refusal decision on 15 March 2022, and the associated Bridging B visas (BVB-3s) are recorded as having ceased on 22 April 2022.

    Current application for a fourth Bridging B visa

23. This application concerns an application for Bridging B visas, lodged on 21 April 2022 (the day before the expiry of the BVB-3s). According to Mr Cao’s statutory declaration of 11 May 2022, he had been alarmed to see on the Department records that the adult applicants’ BVB-3s were due to expire on 22 April 2022, and believed they were wrong. He nonetheless lodged fresh Bridging B visa applications for all the applicants, as a precaution.

    Clause 020.211 and cl.020.221

24. The applicants held Bridging B visas (BVB-3) on the date of their current application, 21 April 2022, and therefore satisfy cl.020.211(b) at the time of application.

25. The issue is whether they continue to meet this at the time of the Tribunal’s decision. As noted above, Department records indicate that the adult applicants’ last Bridging B visas ceased on 22 April 2022 and the applicant child’s ceased on 9 March 2022.

26. The applicant claim that the Department records are wrong and that they in fact continue to hold Bridging B visas issued previously (or which have been reactivated).

    §  The main argument rests on the legal construction of cl.020.212, with the (potential) effect that the BVB-3s issued to the applicant parents, and perhaps the BVB-2 issued to the applicant husband, are in effect at the time of this decision.

    §  A supplementary argument presented after the first hearing, and addressed in detail at the second hearing, is that the applicant husband’s BVB-2 was in fact issued in association with the subclass 482 visa application, rather than the subclass 187 visa.

    Broad points raised during this review

27. Mr Boccabella highlighted recent comments from the Minister for Home Affairs that the migration system is ‘crazily complex’ and ‘incredibly difficult to use’. He urged the Tribunal to take this into account in its assessment and conclusions. The Tribunal considers the general principle of granting bridging visas to non-citizens to allow them to remain in Australia while substantive visa applications are being processed (or for other valid reasons) is relatively straightforward. It agrees, however, that some factual situations – such as those involving multiple applicants, more than one substantive visa application, and bridging visas whose conditions vary (including the Bridging B visa that permits travel to and from Australia) – can give rise to complex scenarios.

28. Mr Boccabella also noted s.15AA of the Acts Interpretation Act 1901, which refers to interpretation to best achieve the purpose of the Act. He noted that bridging visas have the purpose of allowing applicants to hold a visa as a ‘bridge’ between a substantive visa application and a decision being made. The Tribunal notes, however, that the purpose of a Bridging B visa is to allow the holders of Bridging A or Bridging B visas to travel abroad, if there are substantial reasons to do so.

29. The Tribunal task is to assess facts, and interpret and apply relevant law. The Act and Regulations do not afford it any discretion in relation to this matter, although it is mindful of the factors set out above and the broader context of its decision-making.

30. At hearing, the Tribunal queried the applicants’ current unlawful migration status (the adult applicants since 22 April 2022, and the applicant child since 9 March 2022). The applicants and their representative reiterated their position that their previously held Bridging B visas have never ceased, and that they wish to challenge and set the record on the Department’s position that they had ceased in the first half of 2022. In his statutory declaration of 11 May 2022, Mr Cao described the current bridging visa application as merely a ‘precaution’, i.e. not a concession that the previous bridging visas had, in fact, ceased. The Tribunal infers from this that the applicants’ subsequent choices – such as their participation in this review, and foregoing other options to regularise their visa status (for instance, by obtaining a different kind of bridging visa) – are also informed by these views.

31. The upshot is that this review appears to turn on the factual question of whether or not the applicants hold Bridging B visas at the time of this decision, which according to Department records is a simple ‘no’. However, the material before the Tribunal requires it to assess, on the basis of the applicants’ migration and visa histories, and having regard to legal and factual bases for past visa issues, whether any of their previously granted Bridging B visas continue in place, in respect to each of them.

32. The AAT’s recent decision of 15 February 2024 to remit to the Department the decision to refuse to grant the applicant husband a subclass 482 visa, and to find that it has no jurisdiction in relation to the other applicants, is a further twist.

    §  The Tribunal recognises the potential of this to affect its assessment of this application, at least if it were to conclude that the applicant husband continues to hold a previously granted Bridging B visas in association with the subclass 482 visa application, as the decision of 15 February 2024 would be a ‘merits review outcome’ that could (after a specified period of time) lead to the cessation of the Bridging B visa. However, for the reasons set out below, the Tribunal is not satisfied that the applicant husband has held any visa beyond 20 April 2022.

    §  Mr Boccabella referred to a number of other variables arising from the recent AAT decision, in oral submissions at and in his request to have the second hearing postponed. He noted, for instance, that the applicant child has recently sought a separate review of a decision to refuse to grant her a subclass 482 visa, and there is some uncertainty about the Department’s further processing of the husband’s subclass 482 visa application, mainly in relation to timing.

33. While the Tribunal understands the importance of these issues for the applicants, it is not satisfied they warrant any delay in the finalisation of this matter.

    Legal issues: Multiple substantive visa applications and associated bridging visas

    Bridging B visas: 9 March 2022 (BVB-3)

34. As noted above, the adult applicants had two ongoing substantive visa applications, both the subclass 187 application and the subclass 482 application, at the time of applying for the BVB-3s on 23 November 2021, and at the time of the visa grant on 9 March 2022. On Form 1006, they nominated the subclass 187 application as the relevant application. The Bridging B visa grant notice of 9 March 2022 indicated that the bridging visas were linked with the subclass 187 application and set out the terms of its duration.

35. Submissions in this matter have focused on legal arguments regarding whether – when an applicant has more than one substantive visa application that has not been finally determined – a Bridging B application and grant are associated with:

    (a)  a single relevant[4] substantive visa application; or

    (b)  all the substantive visa applications that were ongoing at the time of the Bridging B visa application and grant.

    [4] The Tribunal notes that the substantive visa application nominated on Form 1006 (the Bridging B visa application) and identified in the visa grant is usually one and the same. It uses the term ‘relevant’ because in the BVB-2 grant to the husband, different substantive visa applications were referred to on Form 1066 and in the actual visa grant.

36. The practical implications of this are:

    §  Under the former interpretation, the adult applicants’ subclass 187 applications were finally determined on 18 March 2022, and the Bridging B visas therefore ceased on 22 April 2022 (35 days later), as reflected in the Department’s records.

    §  Under the latter interpretation, the applicants’ subclass 482 applications could at least potentially form the basis for the Bridging B visas to continue to the present.

    Legal arguments: Bridging B visa grants in association with multiple substantive visa applications

1. The applicants and their representatives contend that where an applicant has more than one substantive visa application that has not been finally determined, when applying for a Bridging B visa, the references in cl.020.212(a) and (b) to ‘a valid application for a substantive visa’ should not be confined to a singular substantive visa application, but rather any substantive visa application, i.e. all applications ongoing at that time.

2. Under this construction, the BVB-3s issued on 9 March 2022 should be regarded as being in association with both the subclass 187 visa applications and the subclass 482 applications, as a matter of law and irrespective of the terms set out in the visa grant notice. In this scenario, the bridging visas remain in effect until the circumstances set out in cl.020.511(b) are met in relation to both (or all) substantive visa applications.

3. Mr Boccabella’s arguments in support of this interpretation are, in brief:

   §  He asserts that ‘when there are two substantive visa applications in train then the phrase ‘a valid application for a substantive visa’ in cl.020.212(2)(a) is met individually by both of the subclass 482 substantive visa application and of the subclass 187 visa application’, adding that ‘either substantive application meets the criterion’.

   ­   He contends that the phrase in cl.020.212(2)(a) ‘a valid application for a substantive visa’ can apply to both substantive visa applications individually. ‘The use of the indefinite article ‘a’ is inclusive rather than being a limitation’.

   ­   Similarly, cl.020.211 ‘does not require the selection of any particular outstanding substantive application, as long as a ‘valid application has been made’ and has not been finally determined.

   ­   The submission notes that the wording of cl.020.511(1)(b), permitting the holder to remain in Australia until one of the stipulated events occurs, does not include the words ‘the earlier of…’, implying that the bridging visa remains in force until the last of the substantive visa applications is finally determined.

   ­ As noted above, he referred in this context to s.15AA of the Acts Interpretation Act 1901, adding that ‘the whole purpose of a bridging visa is to allow a person to remain in Australia until a substantive visa application is ‘finally determined’’.

4. The Tribunal considers that the language of sub-clauses 020.212(2)(a), (b) and (c) should be read according to its ordinary meaning, and holistically. The phrase in cl.020.212(2)(a) identifies an applicant as meeting the requirements if they have made ‘a valid application for a substantive visa’. Also, cl.020.212(b) and (c) refer to ‘that application’ in the context of the processing of a particular visa application. Read as a whole, it is difficult to see this as referring to multiple ongoing substantive applications at different stages. (The Tribunal notes, for completeness, that the point of reference is to the particular substantive visa application that has been made. It does not take this to suggest any requirement, express or implied, that only persons who have made a single application may be granted a Bridging B visa.)

5. The scheme for Bridging B visas includes provisions relating to their cessation (cl.020.511) and the conditions that attach to them (cl.020.611). The numerous references in cl.020.511 to ‘the substantive visa application’ in the singular indicates an intention that the period in which the bridging visa is in effect is determined by the status of a particular substantive visa application. Similarly, in relation to cl.020.611, it is clear that different conditions attach according to the nature of the particular substantive visa application with which it is associated.

6. The Tribunal notes that the scheme also envisages that, where an applicant has made more than one substantive visa application, they can apply for individual bridging visas (including Bridging B visas). There are provisions to ensure that the bridging visa conditions reflect the particular circumstances of the visa holder and the visa application they have made; and also to ensure how concurrent bridging visas relate to each other.

7. While the Tribunal accepts Mr Boccabella’s observation that the purpose of the bridging visa scheme as a whole is to allow a person to remain in Australia while a substantive visa application is being processed, it is equally clear that the provisions relating to the grant and cessation of Bridging B visas, and the conditions attached to them, are intended to establish a nexus between the particular substantive visa application that an applicant has made, the Bridging B visa that is then granted, and their substantial reasons for travel outside Australia at a particular point in time.

8. The Tribunal observed that issuing Bridging B visas which were in effect associated with more than one substantive visa application could result in confusion and lack of clarity. In response, Mr Boccabella suggested that it is unexceptional for decision-makers to determine visa conditions and duration according to various factors (including, potentially, the status of concurrent substantive visa applications). However, this does not displace the Tribunal’s reading of cl.020.211 as a whole or the intention that it conveys.

9. Mr Boccabella also noted that administrative forms and arrangements must be subservient to the Regulations, and therefore are of limited assistance in interpreting provisions. He added that ‘Form 1006 simply was [not] designed to cover a situation where more than one substantive application was in train.’[5] The Tribunal agrees that such instruments are of limited assistance in interpreting the Act. It places no weight on the layout of Form 1006 in reaching its conclusions. At the same time, it notes that Form 1006 does not, in fact, appear to preclude an applicant inserting references to more than one substantive visa application.

   [5] Submission of 21 November 2023, paragraph 10. The Tribunal understands the omission of the word ‘not’ to have been a typographical error.

10. The Tribunal is of the view that cl.020.212(2), cl.020.511 and cl.020.611 refer to the application, grant and cessation of a Bridging B visa in association with a single substantive visa application. It finds that the Bridging B visas granted to applicant husband and applicant wife on 9 March 2022 (the BVB-3s) were made solely in association with the subclass 187 visa applications, and they ceased on 22 April 2022.

    Second Bridging B visa (BVB-2): Which associated substantive visa application?

11. The applicants claim that the legal argument concerning the interpretation of cl.020.212(2) also has potential application in relation to the second Bridging B visa grant (BVB-2) which was granted to the applicant husband. On the date of the BVB-2 grant, 21 May 2021, his subclass 187 and subclass 482 visa applications were both subject to ongoing merits review before the Tribunal. For the reasons stated above, the Tribunal does not accept that a Bridging B visa grant is made ‘in association with’ all ongoing substantive visa applications.

12. Following the first hearing, the parties raised a further issue in relation to the BVB-2. It had come to their attention that the applicant husband had nominated the subclass 482 visa application on Form 1006, whereas the bridging visa grant notice of 21 May 2021 indicated that the BVB-2 had been issued with the subclass 187 visa application.

13. The Tribunal agrees with Mr Boccabella’s observation that the grant of a bridging visa on a different basis from that identified on Form 1006, the application form, raises several questions, such as the circumstances and reasons for the discrepancy. There is no material before the Tribunal that sheds light on these questions. However, in the Tribunal’s view, the only question relevant to this review is a finding of fact, namely whether the BVB-2 was granted in association with the subclass 187 visa application (or, alternatively, on the basis of the subclass 482 visa application). On the basis of that finding, the Tribunal can then determine if and when the BVB-2 ceased.

14. Mr Boccabella raised two broad concerns about the BVB-2 grant, namely: (a) that it had been made improperly and without legal authority, and (b) that the reference to the subclass 187 visa in the BVB-2 grant had been made in error, and the Tribunal should therefore disregard that. The Tribunal considers it appropriate to deal with these sequentially.

    Validity of the BVB-2 visa grant

15. The initial argument in this case appeared to go to the validity of the BVB-2 visa, or at least whether the delegate had properly associated it with the subclass 187 visa application.

16. In the submission of 21 November 2023, Mr Boccabella speculated that the delegate issued the BVB-2 presumably on the ‘flip of a coin’, or perhaps for convenience. He went on to opine that the delegate ‘chose to ignore [the reference in Form 1006 to the subclass 482 visa application] and without authority or legal basis purportedly (wrongly as it turned out) to grant the BVB supposedly linked to the subclass 187 visa application’.

17. The decision to grant a Bridging B visa is not a Part-5 reviewable decision, so the Tribunal does not have jurisdiction to determine that the BVB-2 grant is invalid or to vary its terms. In subsequent comments, Mr Boccabella clarified that he did not mean to suggest that the visa grant itself was invalid, merely that the delegate had acted improperly in associating it with the subclass 187 visa application, and the Tribunal could on this basis disregard that link.

    Bridging B visa grant: ‘error’ in associating it with subclass 187 visa application

18. Mr Boccabella emphasised that the Tribunal could conclude that the visa grant notice contained a ‘nomenclature error’, insofar as it purported to be made in association with the subclass 187 visa application rather than the subclass 482 visa application.

    §  Significantly, the applicant husband had nominated the subclass 482 visa application on Form 1006.

    §  Submissions in this case, including Mr Cao’s statutory declaration, noted that at least some Department officers acknowledged that he had sought a Bridging B visa on the basis of the subclass 482 (Temporary Skill Shortage, TSS) visa application. For instance, an officer had marked the envelope containing the Bridging B visa application with the words: ‘S/C 482 – BVB app’. Also, Mr Cao notes (in relation to the subclass 482 visa refusal decision and the subsequent review application) that the TSS team had sent a note to the Tribunal.

    ­   Mr Cao goes on to infer that ‘In practice, therefore, whoever issues the BVB does not refer to the 1006 form to determine which was originating application’ [sic]

    ­   There is no doubt that the TSS team, and the Department officer who handled the incoming BVB-2 correspondence and marked the envelope, were aware of the subclass 482 visa application. This does not, in the Tribunal’s view, shed light on whether the delegate who decided the BVB-2 application and granted the visa did or did not refer to Form 1006.

    §  In later submissions, written and oral, Mr Boccabella invited the Tribunal to consider the Bridging B visa grant as a mere ‘error of nomenclature’, which the Tribunal takes to mean a mere clerical or administrative oversight. He noted that the Department’s software identifies applicants by reference to a passport number and/or client ID number. As there were two ongoing applications at the time, the delegate may have imply inserted the wrong application into the bridging visa grant notice, rather than check which one had been nominated in Form 1006.

    ­   In the submission of 12 March 2024, he suggested that had the delegate written ‘186’ (a clearly mistaken number) rather than 187, the Tribunal would refer to the application form to determine what substantive visa application(s) is/are relevant, and ignore the error.

    ­   At hearing, he also noted instances where an applicant may incorrectly fill out an application form (for instance, with reference to ‘cook’ and ‘chef’, without understanding the distinction), and the Tribunal adopts a pragmatic approach in determining what in fact they meant to write. (The Tribunal notes, however, that this involves determining the contents of an application, in the context of a visa refusal decision, and not the contents of a visa grant.)

    §  The Tribunal notes that the suggestion that the delegate made an oversight or administrative error, while it may raise questions about procedure or thoroughness, does not sit well with the earlier speculation that the delegate had linked the bridging visa grant with the subclass 187 visa application for other reasons, such as administrative convenience.

19. The Tribunal notes that the BVB-2 visa grant notice, a copy of which the applicants submitted to it, includes two references to the subclass 187 visa application, in both the introductory comment and in the box entitled ‘application status’. As noted above, there is no decision record or other reasons provided as to why the visa grant was associated with that, rather than the subclass 482 visa application. The Tribunal accepts that the nomination of the subclass 482 visa application in Form 1006 is significant, but notes at the same time that similar nominations – for instance, application details provided in Part D of Form 1008, in relation to Bridging E visas, subclass 500 – are not binding on delegates when deciding to grant a visa.

20. The Tribunal finds that the applicant husband’s BVB-2 was granted in association with the subclass 187 visa application, and not in association with the subclass 482 visa application. For the reasons stated above, it is not satisfied on the material before it the reference to the subclass 187 visa in the BVB-2 grant was made in error.[6] Having found that the applicant husband’s BVB-2 was granted in association with the subclass 187 visa application, and not in association with the subclass 482 visa, the Tribunal concludes that the BVB-2 therefore ceased on 22 April 2022.

    [6] Having reached this conclusion, it is neither necessary nor appropriate for the Tribunal to determine the precise reasons why the BVB-2 visa grant references the 187 visa application (eg. whether it was linked to the sequencing of the substantive visa applications, the temporary vs. permanent nature of the substantive visa applications, the basis on which the other family members held Bridging B visas, or any other factors).

21. The Tribunal finds that the applicants did not hold Bridging B visas, at any time since 22 April 2022 (the adult applicants) and 9 March 2022 (the applicant child). It has carefully considered the arguments that the Bridging B visas issued on 9 March 2022 and/or 21 May 2021 have not ceased, and/or have been reactivated under s.68(4), but is not persuaded that either the legal arguments or relevant facts support this conclusion.

22. As the applicants are not the holders of Bridging A or Bridging B visas at the time of this decision, they do not continue to satisfy the criteria set out in cl.020.211 and 020.212, and therefore do not meet cl.020.221. 

    Conclusion

23. For these reasons, the applicants do not satisfy the criteria for the grant of a Subclass 020 (Bridging (Class WB)) visas.

    DECISION

24. The Tribunal affirms the decisions not to grant the applicants Bridging B (Class WB) visas.

    James Silva
    Member