1809860 (Migration) - [2018] AATA 1205

1809860 (Migration) [2018] AATA 1205 (18 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1809860
MEMBER:Robert Wilson
DATE:18 April 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:
·cl.050.223 of Schedule 2 to the Regulations, and
·cl.050.212(3) of Schedule 2 to the Regulations.
The Tribunal also directs the primary decision maker
·to indicate to the applicant that conditions 8401, 8101, 8505 & 8506 will be imposed if the visa is granted; and
·to require a security of $12,500 for compliance with the conditions.

Statement made on 18 April 2018 at 2:02pm

CATCHWORDS
Migration – Bridging E (Class WE) – Subclass 050 (Bridging (General)) visa – Substantive visa application not finalised – Applicant in detention – Breach of visa conditions –No arrangements to depart Australia – Mitigating circumstances – Daughter finishing her degree – Daughter’s illness –Bridging visa conditions imposed – Brother -in-law willing to act as a guarantor – Security bond for compliance

LEGISLATION
Migration Act 1958 ss 73, 189, 269
Migration Regulations 1994 Schedule 1 Item 1305 Schedule 2 cls 050.212, 050.223, 050.617 Schedule 8 Conditions 8101, 8401, 8505, 8506, 8512, 050.617
CASES
Chenv MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
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) and a decision made by an authorised officer relating to requiring a security under s.269 of the Act.
The applicant applied for the visa on [date] April 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.050.223.
The decision to refuse to grant the visa was made on 9 April 2018 on the basis that the applicant did not satisfy 050.223 of the Migration Regulations 1994 (the Regulations). The applicant appeared before the Tribunal on 16 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s [relative], [Mr A], and the applicant’s cousin [Ms B]. 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…

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 1809860 (Migration)

Details

AGLC: 1809860 (Migration) [2018] AATA 1205
Case: [2018] AATA 1205
Decision Date: 18 April 2018

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa, Subclass 050 (Bridging (General)), made by an applicant who was in detention and whose substantive visa application had not yet been finalised. The applicant had also applied for a Subclass 051 (Bridging (Protection Visa Applicant)) visa, but was found not to be an eligible non-citizen for that visa. The Tribunal was required to determine whether the applicant met the criteria for the Subclass 050 visa, specifically clauses 050.212 and 050.223 of Schedule 2 to the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the applicant satisfied the criteria relating to having a substantive visa application not finally determined, and whether acceptable arrangements had been made for the applicant's departure from Australia. The Tribunal also considered whether the applicant had breached conditions of a previous bridging visa and any mitigating circumstances presented. Guidance on the interpretation of "acceptable arrangements" was sought from relevant case law, including *Chen v MIMIA* and *Lin v MIMIA*, and the Department's Procedures Advice Manual 3.

The Tribunal found that the applicant met subclause 050.212(3) as he had a Protection visa application that was not finally determined at the time of the decision. This finding meant that the Tribunal did not need to make findings on other aspects of clause 050.212, including whether acceptable arrangements for departure had been made. The Tribunal noted the applicant's stated intention to depart Australia after his daughter completed her degree and recovered from illness, and his willingness to look after her. The Tribunal also considered the applicant's explanation for past breaches of visa conditions, attributing them to ambiguity regarding his departure and communication difficulties.

Ultimately, the Tribunal remitted the matter for reconsideration with a direction that the applicant met criteria cl.050.223 and cl.050.212(3). The primary decision maker was directed to inform the applicant that specific conditions (8401, 8101, 8505 & 8506) would be imposed if the visa were granted, and to require a security bond of $12,500 for compliance.

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 matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether cl.050.212 and cl.050.223 are met.The grounds for seeking the visa - cl.050.212 At the time of application, the applicant was the subject of a substantive visa application that had not been finally determined, therefore he satisfies subclause 050.212 at the time of application. The applicant must continue to satisfy this criterion at the time of decision: cl.050.212(3). The applicant has applied for a Protection visa, which is a substantive visa, which has not been determined at the time of decision. As cl.050.212(1) expresses the subparagraphs in cl.050.212 as alternatives, a finding that the applicant meets cl.050.212(3) means there is no need to make findings on the rest of cl.050.212 and therefore there would be no need for findings on the acceptable arrangements to depart Australia ([9] to [22]). 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’s Procedures Advice Manual 3 (PAM3), whilst not binding on the Tribunal, nevertheless provides some guidance: Chenv MIMIA [2001] FCA 285 (Chen) 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]). At the hearing held on 16 April 2018 the applicant stated that he did not have a valid ticket to depart Australia. He later stated that he wanted to leave Australia but his daughter’s thyroid and her immune system are bad. She will graduate in July or August 2018. However, she will be allowed to study for a Master’s Degree. If she continues her study he would like to go back to China with her. He wants to look after her until her health has recovered. She does not live with the applicant in [Australian city 1]. He is presently in the Detention Centre. Further, the Tribunal asked the applicant if he had made, or was he the subject of acceptable arrangements to leave Australia? He replied, ‘Yes.’ He said he wanted to look after his daughter, and then he will go back to China. The Tribunal asked if he went back, would he work? He said he had no choice, he would have to support his daughter, and make a living. The Tribunal asked the applicant if he wished to depart Australia voluntarily. He said, ‘Yes, I will voluntarily leave Australia.’ The Tribunal asked whether he meant now, or after his daughter graduates? The Tribunal did not hear any response. The Tribunal asked if he breached conditions of his last BVE that were granted on departure grounds? He stated that time his daughter was studying and he was in an ambiguous situation to leave or not to leave. At that time he had a different legal representative who wanted the applicant and his daughter to leave first, but he did not know how to do that. He had an Australian lawyer and the applicant could not read English. The Tribunal asked if his daughter knew how to read English. He stated that she was [age] years old and her English was not so good at that stage.

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 remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:·cl.050.223 of Schedule 2 to the Regulations, and·cl.050.212(3) of Schedule 2 to the Regulations. The Tribunal also directs the primary decision maker·to indicate to the applicant that conditions 8401, 8101, 8505 & 8506 will be imposed if the visa is granted; and·to require a security of $12,500 for compliance with the conditions.Robert WilsonMember

Ratio Decidendi

Legal Principle Established

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