DRP16 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1800

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) (as it then was) dated 21 October 2021. By that decision, the Tribunal affirmed a decision of a delegate of the Minister refusing to grant the applicant a Bridging E (Class WE) (Subclass 050) visa (visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application for review has been brought within the time set out in s 477 of the Act.
2. The applicant's judicial review ground raises the issue of whether the Tribunal has breached s 360 of the Act. For the reasons set out below, I find the applicant has not demonstrated jurisdictional error and I dismiss the application.

1. The applicant is a citizen of Bangladesh who arrived in Australia on 4 December 2012 as an unlawful maritime arrival. The applicant subsequently applied for a protection visa and his application for a protection visa was unsuccessful, as were his previous applications to the Federal Circuit Court and the Federal Court of Australia.
2. On 1 March 2021, the applicant applied for a Bridging E (Class WE) (Subclass 050) visa (Court Book (CB) 1 to 6). On 8 March 2021, a delegate refused to grant the applicant the visa (CB 14 and 15). The delegate was not satisfied that the requirements in cl 050.211(2) of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) was met, as the applicant was an eligible non-citizen of the kind set out in reg 2.20(17). Therefore, cl 050.211(2) was not satisfied, which relevantly required that the applicant "is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11), or (17)".

1. On 29 March 2021, the applicant applied to the Tribunal for review of the delegate's decision (CB 16 to 22).

1. On 6 October 2021, the Tribunal sent the applicant two emails to his email address for service noted on his application to the Tribunal as his contact details (CB 19). The first letter dated 6 October 2021 was issued pursuant to s 360 of the Act and invited the applicant to attend a hearing on 21 October 2021 at 2pm. The second letter also dated 6 October 2021 was sent by the Tribunal pursuant to s 359 of the Act, and invited the applicant to provide information that he satisfied cl 050.211 of Sch 2 to the Regulations (s 359 Invitation) (CB 36 to 38). I note that the s 359 Invitation expressly required the applicant to provide the information by midnight AEST time on 20 October 2021. The letter also, importantly, stated the following (emphasis in original):

If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments, and the hearing scheduled for 21 October 2021 will be cancelled.

1. The applicant did not provide a response to the s 359 Invitation. Consequentially, on 21 October 2021, the Tribunal notified the applicant that the hearing had been cancelled as it had not received a response to the s 359 Invitation (CB 40). The Tribunal proceeded on the 21 October 2021 to determine the application for the visa and whether the applicant was entitled to a grant of the visa.

1. Relevantly, the Tribunal at [2] to [9] of its reasons set out the background of the matter as follows:
   1. The applicant identifies as 43-year-old male citizen of Bangladesh. He arrived in Australia on 4 December 2012 by boat as an unlawful maritime arrival. On 11 February 2013 the applicant lodged a s.195A Onshore Ministerial Intervention application. This was finalised on 28 February 2013 and the applicant was granted a bridging visa.
   2. 4 April 2013 he applied for a protection visa. On 25 April 2013 the bridging visa expired. On 3 June 2013 the applicant was granted a bridging visa.
   3. The protection visa was refused by a delegate on 16 April 2015. The applicant applied to the Tribunal for review of the protection visa refusal decision. On 24 November 2016 the Tribunal affirmed the decision to refuse to grant the protection visa in AAT case 1505547. On 23 December 2016 the bridging visa expired. The applicant became an unlawful noncitizen which he remains to date.
   4. On 5 December 2016 the applicant applied to the Federal Circuit Court for judicial review of the Tribunal decision. On 13 December 2016 the applicant applied for a bridging visa. On 21 March 2018 the Federal Circuit Court dismissed the judicial review application. On 24 May 2018 a delegate refused to grant the bridging visa. The applicant applied to the Tribunal for review of the bridging visa refusal decision. The applicant appealed the decision of the Federal Circuit Court to the Federal Court. On 12 October 2018 the Federal Court dismissed the appeal. On 11 September 2020 the Tribunal affirmed the bridging visa refusal decision in AAT case 1816784.
   5. On 1 March 2021 the applicant applied for the bridging visa that is the subject of this decision record. At that time Class WE contained two subclasses: Subclasses 050 and 051. The criteria for the grant of a Subclass 050 visa, which are set out in Part 050 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
   6. On 8 March 2021 the delegate refused to grant the visa on the basis that the applicant did not satisfy cl.050.211 or cl.051.211 of the Regulations. On 29 March 2021 the applicant applied to the Tribunal for review of the decision to refuse to grant the bridging visa.
   7. On 6 October 2021 the Tribunal wrote to the applicant for two reasons.
   8. The first reason was to invite the applicant under s.360(1) of the Act to appear at a Tribunal hearing at 2pm on 21 October 2021 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to a Tribunal hearing because it had considered the information it had and was unable to make a decision favourable to the applicant. The hearing invitation included a 'Response to hearing invitation form' which the applicant was directed to complete and return to the Tribunal. The Tribunal never received a completed form from the applicant.
2. The Tribunal noted at [10] of its reasons that as a result of the failure of the applicant to provide the information sought in the s 359 Invitation, the applicant had lost the right to appear at the Tribunal hearing and the hearing was cancelled.
3. The Tribunal at [11] to [15] set out the relevant criteria for the grant of the visa. The Tribunal then set out its findings at [18] to [26] of its reasons. The Tribunal's reasons for finding that the applicant did not meet the relevant criteria was, in essence, that he was a person who was an eligible non-citizen as provided by reg 2.20(17). The Tribunal's reasons for so finding are set out at [23] and [24] of its reasons, which were as follows:
   1. The Tribunal is satisfied that the applicant's removal from Australia is not reasonably practicable at this time. There is no evidence that the applicant holds a Bangladesh passport which would enable his return to that country. Further, the current COVID-19 pandemic has affected international travel. Regarding travel into Bangladesh, the Civil Aviation Authority of Bangladesh, the 16 August 2021 Air Transport Flight Circular provides different regimes for vaccinated and unvaccinated people, and different allowances for people depending on which country they are travelling from 1. To the Tribunal's way of thinking, it cannot be reasonably practicable to remove the applicant to Bangladesh when he has no passport to return there and there are complicated arrangements to work out whether he would be allowed to return to Bangladesh at this time due to the pandemic. Therefore, he is an eligible non-citizen as provided by 2.20(17).

Clause 050.211

1. The applicant's migration history demonstrates that at the time he applied for the bridging visa on 1 March 2021 he was an unlawful non-citizen. Accordingly, the applicant meets cl.050.211(1). However, as demonstrated above, the applicant is a person who is an eligible non-citizen as provided by 2.20(17). As cl.050.211 (2) is framed in the negative (that is, he is required to not be a person caught by 2.20(17), the applicant does not meet cl.050.211 (2). As the applicant does not meet cl.050.211(2), he fails to meet cl.050.211 in its entirety. Accordingly, the applicant does not meet cl.050.211.

1. The applicant's application dated 24 December 2021 contains one ground for review being as follows (as per original):

The Tribunal has breached s360 of the Migration Act 1958 (Cth).

Particulars:

The Tribunal has failed to exercise its statutory obligations under s.360 of the Migration Act 1958 (Cth) and have failed to invite the applicant as required by law.

1. The applicant appeared at the hearing before me as a litigant in person, assisted by an interpreter in the English and Bengali languages. Mindful of the Court's duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146 at [37]), I ensured that the applicant was provided with copies of the application, the Minister's submissions, the Tribunal's reasons and the Court Book. I also ensured that the applicant had those documents interpreted to him.
2. The evidence before the Court comprised of the Court Book, which was marked "Exhibit R1".

(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

(3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:

(a) except where paragraph (b) applies - by one of the methods specified in section 379A; or

(b) if the invitation is given to a person in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

(4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.

1. Section 359B(2) of the Act relevantly provided the period in which the person must respond is the period specified in the invitation.
2. Section 359C of the Act sets out the consequences of a person failing to respond, relevantly as follows:

359C Failure to give information, comments or response in response to written invitation

(1) If a person:

(a) is invited in writing under section 359 to give information; and

(b) does not give the information before the time for giving it has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the information.

1. Section 360 of the Act set out the circumstances when a person needs to be invited to a hearing as follows:

360 Tribunal must invite applicant to appear

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2) Subsection (1) does not apply if:

...

(c) subsection 359C(1) or (2) applies to the applicant.

363A Tribunal does not have power to permit a person to do something he or she is not entitled to do

If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.

1. The letter sent pursuant to s 359 of the Act was in the following terms (CB 36) (emphasis in original):

INVITATION TO PROVIDE INFORMATION

I am writing on instruction from the Member conducting your review, in relation to the application for review made by you in respect of a decision to refuse to grant a Bridging E (Class WE) visa.

On 8 March 2021 the delegate refused to grant you the bridging visa on the basis that you did not satisfy cl.050.211 or cl.051.211 of the Migration Regulations 1994 {the Regulations). I attach a copy of those clauses for your assistance.

On 29 March 2021 you applied to the Tribunal for review of the refusal decision.

You are invited to provide information to demonstrate how you meet these clauses.

The information should be received by midnight AEST time on 20 October 2021. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

If you cannot provide the information by 20 October 2021, you may ask us for an extension of time in which to provide the information. If you make such a request, it must be received by us by 20 October 2021 and you must state the reason why the extension of time is required.

We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments, and the hearing scheduled for 21 October 2021 will be cancelled.

1. There was no response from the applicant and on 21 October 2021, the Tribunal sent the letter to the applicant informing him that the hearing had been cancelled (CB 40).

1. I asked the applicant to explain to me what the Tribunal legally did wrong. The applicant said that he had requested a visa, and he felt "it was not good to be in Australia as an illegal person". This was said to be because "in this country without a visa one cannot do anything and encounters a lot of problems". The applicant said he could not even go to see the doctor because "wherever you go you have to - you require a visa". The applicant, when asked to provide any submissions in response to the Minister's submission, said that he "didn't know what to say" because without a visa he "could not do anything".
2. I am sympathetic to the applicant's situation. However, this Court can only review the Tribunal's reasons to assess whether there has been jurisdictional error. This Court cannot engage in a merits review and decide whether or not to give the applicant a visa.
3. Having reviewed the letter dated 6 October 2021, the letter clearly sets out the information sought and sets out a specified time for when the information is to be provided. It also clearly set out for the applicant that he would lose any entitlement if he did not provide the response. Any entitlement to appear to give evidence and the hearing scheduled for 21 October 2021 would be cancelled. The applicant did not respond to the Tribunal's letter dated 6 October 2021. The applicant informed me that he received this email from the Tribunal.
4. Having regard to the statutory scheme outlined at [14] to [18], the applicant was not entitled to appear before the Tribunal. Further, s 363A makes it clear that the Tribunal does not have power to permit a person to attend a hearing when he is not entitled to under the legislative scheme. In light of those matters, I find there was no breach of s 360 of the Act, and the Tribunal did not fail to exercise the statutory obligations under that provision. The ground fails.
5. Given that the applicant was self-represented, I reviewed the decision of the Tribunal to assess whether the Tribunal correctly applied the criteria. I find there was no error in the Tribunal's application of the relevant criteria to the facts of the case for the reasons the Tribunal set out at [23] to [25] of its reasons.

1. Given that there is no jurisdictional error disclosed, the application must be dismissed.

1. The Minister sought an order that the applicant pay costs fixed in the amount of $8,371.30. I find costs should follow the event and the amount sought is reasonable, given the Minister has retained Counsel in this matter, Counsel has prepared for today's matter and the duration of the hearing was two and a half hours.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.