1822276 (Migration) - [2018] AATA 3631

1822276 (Migration) [2018] AATA 3631 (9 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1822276
MEMBER:Paul Windsor
DATE:9 August 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 09 August 2018 at 2:15pm
CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Whether the applicant will apply for a substantive visa within the allowed time – Where the relevant timeframe has expired – Where the applicant is subject to a statutory bar – Where Protection visa application previously determined – Applicant unable to apply for a substantive visa – Bridging visas should not be used to circumvent legislative intent – Whether the applicant has a genuine intention to depart Australia – Where the applicant has expressed the desire to remain onshore – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5(9), 48A, 73, 195
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.221, 050.223, 051.211
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 26 July 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(2) and (3).
The decision to refuse to grant the visa was made on 30 July 2018 and the applicant sought review of this decision by the Tribunal on 1 August 2018. The applicant provided the Tribunal with a copy of the delegate’s decision record.[1]
[1] See folios 3-8 of the Tribunal file.
The delegate was satisfied that the applicant met the primary criterion at cl.050.212(2) on the basis that he was making, or was the subject of acceptable arrangements to depart Australia. The delegate was also satisfied that the applicant continued to meet this criterion at the time of decision (as required by cl.050.221). The delegate refused to grant the visa because she was not satisfied that the applicant would abide by the conditions that would be imposed on the bridging visa and therefore found that he did not meet the requirements of cl.050.223. The delegate indicated in her decision record that while the applicant stated in his application for a Bridging E visa that…

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 1822276 (Migration)

Details

AGLC: 1822276 (Migration) [2018] AATA 3631
Case: [2018] AATA 3631
Decision Date: 9 August 2018

CaseChat Overview and Summary

The applicant sought review of a decision not to grant a Bridging E (Class WE) visa. The dispute centred on whether the applicant met the primary criteria for the visa, specifically whether they were making or the subject of acceptable arrangements to depart Australia, or whether they had made or would make a valid application for a substantive visa. The matter was heard by a Member of the Tribunal.

The Tribunal was required to determine if the applicant continued to meet the primary criteria for the Bridging E visa at the time of the decision, as stipulated by clause 050.221 of the Migration Regulations 1994. This involved assessing whether the applicant satisfied either clause 050.212(2), concerning acceptable arrangements to depart Australia, or clause 050.212(3), relating to the application for or intention to apply for a substantive visa.

The Tribunal reasoned that while the delegate had initially found the applicant met clause 050.212(2) based on statements of intent to depart after marriage and a voluntary request for removal, the applicant's overall conduct and stated intentions suggested a desire to remain in Australia. The Tribunal noted that the applicant had expressed a desire to apply for further onshore visa options, which conflicted with the requirement for acceptable arrangements to depart. Furthermore, the Tribunal considered that bridging visas should not be used to circumvent legislative intent, particularly where the applicant was subject to a statutory bar and their previous Protection visa application had been determined, rendering them unable to apply for a substantive visa onshore.

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 meets the primary criteria at cl.050.212 and continues to meet the primary criteria at the time of decision, as required by cl.050.221. For the reasons below the Tribunal finds that he does not.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 cl.050.212(2) or (3). The applicant does not claim to meet any of the other alternative criteria in cl.050.212.Acceptable arrangements to depart Australia Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied, at the time of application, 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]). The delegate found that the applicant met the requirements of cl.050.212(2) because, although he indicated in the application that he wished to apply for a Partner visa in Australia, he indicated at an interview with the delegate that after he was married he wished to depart as he does not like it in Australia; and that while he asked that no conditions be enforced on him, indicated that if he can get married he will have no problems going back to India. Noting that while the applicant did not have a valid travel document and had not made any arrangements to depart, he had signed a voluntary request for removal and arrangements were being made by the Department to facilitate this, including obtaining a travel document, the delegate was satisfied that the applicant met the requirements of cl.050.212(2), even though he had made statements about pursuing further onshore visa options.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.

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.Paul WindsorMember

Ratio Decidendi

Legal Principle Established

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