1903554 (Migration)

[2019] AATA 618

1903554 (Migration) [2019] AATA 618 (25 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1903554

MEMBER:Mark Bishop

DATE:25 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 25 February 2019 at 12:45pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – subclass 050 – has not made and is not making acceptable arrangements to depart Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 73
Migration Regulations 1994, Schedule 2, cl 050.212 (2)

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 section 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 to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 February 2019. 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) of Schedule 2 to the Regulations.

3. The decision to refuse to grant the visa was made on 14 February 2019 on the basis that the applicant did not meet cl.050.212 of Schedule 2 to the Regulations in that the applicant did not meet the grounds, was not making or was not the subject of any arrangements to depart. The applicant provided a copy of the delegate’s decision record to the Tribunal. The applicant appeared before the Tribunal on 22 February 2019.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicant meets the grounds as set out in cl.050.212 of Schedule 2 to the Migration Regulations as to whether the applicant meets the grounds, was making or was the subject of any arrangements to depart.

   The grounds for seeking the visa - cl.050.212

6. 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.

7. The applicant provided a copy of the decision record to the Tribunal. The decision record contained the detail of the applicant’s visa history and requests for Ministerial Intervention (MI). The decision record showed the applicant had been resident in Australia since [July] 2009 as the holder of successive TU-572 visas and associated Bridging visas. He lodged numerous applications for Bridging Visas E. He lodged applications for XA-866 and UK 820/BS 801 visas. He lodged three (3) applications for MI on 11 December 2014, 10 December 2018 and 7 February 2019. The decision record outlined the following:

   ·[The applicant]’s application for this BVE on grounds of Ministerial Intervention as a repeat S4I7 MI request was lodged on 7 February 2019. This Ml request was finalised on 13 February 2019. I am not satisfied 050.212(5B) or (6) is met as client previously received s417 MI outcome decision on 17 January 2019. 

   ·At interview on 14 February 2019, when I informed client that his repeat Ml request was finalised and asked him whether he was willing to depart. The applicant responded that he no intentions of leaving Australia. (Tf: 5). With this in mind, client does not claim to meet any of the other alternative criteria in cl.050.2 12(2)-(9). Having weighed up all the available information and evidence before me I am not satisfied the client meets 050.212.

   Acceptable arrangements to depart Australia

8. 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: Chen v 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]).

9. The Tribunal asked the applicant to explain his grounds for seeking review of the delegate’s decision and provide any relevant information to the Tribunal. The applicant advised that on 6 February 2019 his visa expired. He went to the Department and gave them a receipt for a request for Ministerial Visa intervention.  A case officer contacted applicant and invited the applicant to attend a meeting. The applicant does not believe the case officer was sincere. The applicant advised the case officer said his case was complex. The applicant advised the Tribunal he was seeking a visa so he would not be unlawful. His application for a visa was refused. The case officer informed the applicant his application for Ministerial Intervention was refused. The applicant believes he was detained by trickery on the part of the case officer. The applicant advised the Tribunal he wished time to organise himself prior to leaving Australia. He did not provide any detail of a timeframe to organise himself, what help his wife needed, or what sort of arrangements he was seeking to finalise prior to leaving Australia. He did not provide detail of any kind. The applicant was of the view the case officer should have issued him a visa so he could help his wife. He is not a criminal. The applicant advised the Tribunal he felt bad because he had been unable to prepare his family on account of his possible leaving Australia. As late as yesterday (21 February 2019) he advised his wife it is possible he will have to leave Australia. He advised if he was not in detention he could be outside working and of assistance to her.

10. The Tribunal asked the applicant to outline any other grounds to support his application. He advised he sought a Bridging Visa so he could get his affairs in order prior to departing Australia. He intends to apply for a partner visa offshore. He wished more time to encourage his wife to seek assistance. He did not provide any detail as to why his wife needed assistance or what sort of assistance she might require. He did not provided any further evidence.

11. The Tribunal inquired if the applicant was making, or was the subject of, acceptable arrangements to depart Australia.

12. The applicant advised he had not made any arrangements to leave Australia. He had not purchased a ticket to leave Australia. He had not done anything practical to ensure he could leave Australia. He had not asked his family or friends to do anything to purchase a ticket so he could leave Australia.

13. The Tribunal asked the applicant on multiple occasions if he wished to provide any material or put before the Tribunal any information in support of his application to review the decision of the delegate. The Tribunal asked the applicant whether there was any evidence or information or documents that he wished to bring to the Tribunal’s attention in support of his application to the Tribunal to review the delegate’s decision. The applicant did not provide any documents in support of this application. The Tribunal asked the applicant whether there was any circumstances he wished to inform the Tribunal that may support this application. The applicant responded and advised the Tribunal he needed to not be in the detention centre so that he could assist his wife with her family responsibilities concerning children. He did not outline any detail as to the family responsibilities he needed to help his wife and did not tell the Tribunal how long he needed to prepared his wife for departure. He further advised the Tribunal he needed time to prepare his wife for his possible departure from Australia. He did not make the Tribunal aware of any other circumstances. The Tribunal again offered the applicant the opportunity to separately say anything in support of his application. The Tribunal asked the applicant if he wished to say anything further or present material relating to any of the grounds in cl.050.212. The applicant advised he did not. The applicant failed to provided information or material that supported any of the grounds in cl.050.212(2)-(9).

14. The Tribunal has relied upon the delegate’s decision and the evidence of the applicant. Excluding the decision record, the applicant did not provide any material or information to the Tribunal prior to or during the hearing. The Tribunal closely listened to the applicant. The Tribunal on a number of occasions repeated questions to the applicant. The applicant did not outline to the Tribunal how much more time he needed to organise himself or get his affairs in order before leaving Australia. He did not outline the scope or detail of those affairs. He did not explain why he needed extra time or what he might do in that time. He did not explain why he had not been able to explain to his wife or prepare his family for his possible leaving of Australia. He did advise the Tribunal he had been in dialogue with his wife and said he might have to leave. He did not advise of further detail. He did not explain any detail as to working, whether he was currently employed, the basis of that employment or his income circumstances. Apart from stating he was considering applying for a partner visa offshore he did not advise of any preliminary work to establish its availability the availability of a partner visa to himself or the circumstances in which he might gain such visa. The applicant advised he had not made any arrangements to leave Australia. He had not purchased a ticket to leave Australia. He had not done anything practical to ensure he could leave Australia. He had not asked his family or friends to do anything to purchase a ticket so he could leave Australia. The applicant did not provide any information to the Tribunal that would lead the Tribunal to the conclusion the applicant might or would make out any of the grounds in cl.050.212(2)-(9).

15. The applicant has not made and is not making acceptable arrangements to depart Australia.

16. For these reasons, the Tribunal is not satisfied that at the time of application the applicant was making or was the subject of acceptable arrangements to depart Australia. Therefore the applicant does not meet cl.050.212(2).

    CONCLUDING PARAGRAPHS

17. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

18. 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

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

    Mark Bishop
    Member