1714595 (Migration)

[2019] AATA 1458

1714595 (Migration) [2019] AATA 1458 (5 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714595

MEMBER:Russell Matheson

DATE:5 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 05 March 2019 at 1:31pm

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable departure arrangements – reason for inability to depart Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.221

CASES
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to sections 378 and 501K 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 a decision made by a delegate of the Minister for Immigration on 20 June 2017 to refuse to grant the visa applicants a Bridging E (Class WE) Subclass 050 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 25 May 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant had made acceptable departure arrangements to leave Australia. The applicants seek review of the delegate’s decision.

3. The visa applicants declined an invitation to attend a hearing on 24 January 2019 and requested the Tribunal make a decision on the information available in the Tribunal and Department files.

4. The visa applicants provided the following reasons for not wanting to attend a hearing:

   ·    Their younger daughter, who is also an applicant has been granted Australian citizenship and they did not want her to attend;,

   ·    The [review applicant]  has [specified medical conditions] and the visa applicants do not want her to be confronted with the pressure of facing difficult questions;

   ·    The Immigration Department has granted the visa applicants a Bridging visa that is valid until 6 February 2019.

5. The Tribunal notes the Bridging visa was granted by the Department on 5 December 2018 on the grounds the applicant’s must depart Australia before their Bridging visa ceases.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicants are making, or are the subject of, acceptable arrangements to leave Australia as defined in cl.050.212(2).

8. At the time of the visa application, the applicants must meet one of the alternatives set out in cl.050.212(2)-(9). The applicants must continue to satisfy this criterion at the time of decision: cl.050.221.

9. In this case, the applicants are seeking to meet cl.050.212(2). The applicants do not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the applicants do not meet cl.050.212.

   Acceptable arrangements to depart Australia

10. Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The Department of Immigration’s Procedures Advice Manual 3, whilst not binding on the Tribunal, nevertheless provides some guidance: Chenv MIMIA [2001] FCA 285 at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions, in making any arrangements to depart, were genuine (Lin at [30]).

11. The first and third named applicants presented for interview regarding their Bridging visa application on 25 May 2017. At interview they were informed by the customer service representative of the Minister’s decision not to intervene in their case. At this stage, of the interview, their tone became overly aggressive and loud; they stated on several occasions that they have no intention of ever departing Australia.  The visa applicants provided no reason why they could not depart Australia by the time their visa ceased or evidence that they were making acceptable arrangements to depart Australia.

12. The visa applicants provided the Tribunal a copy of the review applicant’s [medical] report dated 26 November 2018. The Tribunal accepts that the review applicant’s [symptoms] appear to have developed as a direct consequence of the [distress] caused by the residency status of her family and she is receiving further [treatment] to address her [medical conditions]. The Tribunal accepts that this may occur [when] a person is required to make arrangements to depart Australia due to migration issues. There is no evidence before the Tribunal that the review applicant’s [medical conditions] would affect her immediate departure from Australia or that she could not receive the appropriate treatment overseas to address her [medical conditions]. The Tribunal accepts that the second named applicant is a dependent child of the first named visa applicant and review applicant and she is also an Australian citizen. There are no reasons or evidence before the Tribunal that she is unable to depart Australia in the company of her parents.      

13. The applicants have no ongoing matters with the Department, at merits review or judicial review, nor do they have any ongoing Ministerial Intervention requests.

14. No other grounds that would meet the Time of Application Criteria as per cl.050.212 have been raised by the applicants in their Bridging visa application, nor are there any apparent to the Tribunal.

15. As such, the Tribunal finds that the first and third named applicants do not satisfy the requirements of cl.050.212, therefore the first and third named applicants do not satisfy the requirements cl.050.221 at the time of decision.

16. The applicants provided a certified copy of the second named applicant’s Australian citizenship which was conferred on 19 July 2018, which postdates the delegate’s decision to refuse all three applicants the visa on 20 June 2017.

17. Therefore, the second named applicant is not able to continue to satisfy cl.050.211(1)(a) for the purposes of cl.050.221 because she is not an unlawful citizen. 

18. For these reasons, the applicants do not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

    DECISION

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

    Russell Matheson
    Member