1807174 (Migration) - [2018] AATA 1956

1807174 (Migration) [2018] AATA 1956 (23 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1807174
DIBP REFERENCE(S):  CLF2018/29180
MEMBER:Sean Baker
DATE:23 March 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 23 March 2018 at 6:26pm
CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Unable to make a substantive visa application – Time limits had been exceeded – In detention – Long period of unlawfulness – Doubts on Genuine intention to depart Australia – Unsupportable claim – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 73,137, 194,195, 196, 359AA
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221
CASES
Chenv MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
Liu v MIAC [2008] FMCA 725
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 14 March 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.050.212.
The decision to refuse to grant the visa was made on 15 March 2018 on the basis that the applicant intended to make an application for a substantive visa (cl.050.212(3)) but that he was unable to make such an application because the time limits it s.195 had been exceeded, and therefore that the applicant did not meet cl.050.212(3). The applicant provided a copy of the delegate’s decision to the Tribunal. The applicant appeared before the Tribunal on 23 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner [and] his [sister]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a ground on which to be granted the bridging visa.
The grounds for seeking the visa - cl.050.212
At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1807174 (Migration)

Details

AGLC: 1807174 (Migration) [2018] AATA 1956
Case: [2018] AATA 1956
Decision Date: 23 March 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Bridging E (Class WE) visa made by an applicant in immigration detention. The applicant sought to be granted the visa on the grounds that they intended to apply for a partner visa, a substantive visa, and wished to remain in Australia with their partner and child.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the grant of a Bridging E visa under clause 050.212 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant satisfied subclause 050.212(3), which requires the applicant to have made a valid application for a substantive visa or to satisfy the Tribunal that they would apply for such a visa within a specified period. The Tribunal also considered whether the applicant met the requirements for a Subclass 051 (Bridging (Protection Visa Applicant)) visa, which the applicant had also applied for.

The Tribunal reasoned that the applicant was unable to make a valid application for a partner visa due to the operation of section 195 of the Migration Act 1958. This section restricts a detainee's ability to apply for a visa, other than a bridging visa or a protection visa, after specific time limits have passed following their detention. The applicant had exceeded these time limits and therefore could not apply for a partner visa. Furthermore, the Tribunal found that the applicant did not meet the criteria for a Subclass 051 visa as they were not a relevant eligible non-citizen.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant has a ground on which to be granted the bridging visa.The grounds for seeking the visa - cl.050.212 At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221. In this case, the applicant is seeking to meet either cl.050.212(3) or, cl.050.212(2). The applicant does not claim, nor is there evidence to suggest, he could meet any of the other alternative criteria in cl.050.212.For the reasons below, the applicant does not meetcl.050.212.Substantive visa application Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act. The applicant claims that he wishes to make an application for a partner visa, a substantive visa. He stated that he wishes to remain in Australia with his partner, with whom he has lodged a notice of intention to marry, and his young son. In submissions and at the hearing he has described the difficulties of being parted from his partner and that he needs to be released from detention in order to look after her and the child. However, on discussing this with him it appears that the applicant is unable to make such an application. This is because of the operation of s.195 of the Act, which states:Section 195 Detainee may apply for visa (1) A detainee may apply for a visa: (a) within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or(b) if he or she informs an officer in writing within those 2 working days of his or her intention to so apply — within the next 5 working days after those 2 working days.(2) A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time Section 194 relevantly states:Section 194 Detainee to be told of consequences of detention As soon as reasonably practicable after an officer detains a person under section 189, the officer must ensure that the person is made aware of:(a) the provisions of sections 195 and 196; and(b) if a visa held by the person has been cancelled under section 137J — the provisions of section 137K

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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