1913740 (Migration)

[2019] AATA 3150

1913740 (Migration) [2019] AATA 3150 (6 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1913740

MEMBER:Stephen Conwell

DATE:6 June 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 06 June 2019 at 3:08pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – vague departure plans – passport renewal – inactivity during previous Bridging visas – requirements of the Ministerial intervention subclauses – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48A, 48B, 73, 345, 351, 417
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212

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 28 May 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 for this matter, the primary criteria include cl.050.212(2).

3. The decision to refuse to grant the visa was made on 31 May 2019 on the basis the delegate was not satisfied the applicant satisfied cl.050.212. The applicant did not provide a copy of the delegate’s decision with his application for review, however he did provide it to the Tribunal by separate email.

4. The applicant appeared before the Tribunal on 5 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, [Ms A]. Following the hearing [the applicant] tendered to the Tribunal a copy of his statutory declaration made on 20 August 2018 in support of his application for Ministerial intervention submitted on 22 August 2018.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant meets one of the grounds specified for seeking the visa.

7. 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.

8. In this case, the applicant is seeking to meet cl.050.212(2). The applicant also seeks to claim that he satisfies one of the grounds in subclause 050.212 pertaining to Ministerial intervention, on the basis of his most recent application for the Minister.  The applicant does not claim to meet any of the other alternative criteria in cl.050.212.

9. [The applicant] told the Tribunal he needs to be granted a Bridging visa E to allow him to renew his Indian passport and make arrangements to depart Australia. He stated that his [age] year old daughter [Child B] was diagnosed with [Medical Condition 1] and was granted a Protection visa in May 2017; and his younger daughter, [Child C] now has an application for a Protection visa under active consideration. [The applicant] wishes to remain in Australia firstly to await the outcome of his latest application for Ministerial intervention as well as the outcome of [Child C]’s application for a Protection visa.

10. [The applicant] alleges that a Department officer has told him that given [Child B] has been granted a Protection visa the Department will not seek his involuntary departure from Australia.

11. The Tribunal also took evidence from the applicant’s wife, [Ms A], which indicates her support for the applicant. She stated that:

    ·the applicant misses their children and they him;

    ·The eldest child, [Child B] has a special bond with the applicant, perhaps because of her [medical condition].  That bond is under stress with the applicant’s continuing detention;

    ·The applicant’s continuing detention places her under considerable emotional and financial stress which is compounded by the challenging health issues of her daughter, [Child B];

    ·She and her younger daughter, [Child C] have been granted Bridging (E) visas and she cannot understand why her husband’s visa applications have been refused.

12. The applicant’s evidence at hearing was consistent with the information contained in his Bridging visa application, namely that:

    ·he has only vague departure plans since he continues to await the outcome of his latest Ministerial intervention application and his youngest daughter’s Protection visa application;

    ·he requests a Bridging visa in order to:

    oapply for a new passport for himself and his eldest daughter as both their Indian passports have expired;

    oawait the outcome of his [Child C]’s Protection visa application;

    oallow him to spend time with his wife and children;

    oapply for an Indian passport for his wife, who is a [Country 1] citizen; and

    oarrange his personal affairs in Australia before departing the country;

13. When asked what, if any arrangements he has made for departure, the applicant stated there was not much he could do whilst in detention without a valid passport. He stated that he needs a Bridging visa and new passport before he can initiate more concrete plans to depart Australia.

    Acceptable arrangements to depart Australia

14. 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]).

15. The applicant explained at the hearing that he did not have a current passport as his previous passport expired in November or December 2018. When asked if he had lodged an application with the Indian High Commission, the applicant stated that he received telephone advice from the High Commission that he would be unable to apply for a passport whilst in detention.  The applicant claims that he needs to be released from detention in order to obtain a passport.

16. The Tribunal finds that the applicant’s reasons for applying for a Bridging visa and his circumstances at the time of hearing are unchanged from the time of his application.  As noted in the decision record, the applicant has previously been provided with multiple Bridging visas (WE/050) pursuant to subclause 050.212 (2) (acceptable arrangements to depart Australia).  Whilst he has not been the subject of ‘forced departure’ arrangements, the applicant has not availed himself of the opportunities presented under his previous Bridging visas to apply for a new passport and make arrangements for departing Australia. 

17. As noted by the delegate, the applicant submitted no evidence such as a passport application, booked airline ticket or sufficient funds to facilitate departure arrangements in support of his current Bridging visa application.  Nor has such evidence been tendered to the Tribunal.

18. In view of the foregoing, the Tribunal is not satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. The Tribunal therefore finds that [the applicant] does not meet cl.050.212(2).

    Ministerial intervention

19. Subclause 050.212(5B) is met if the applicant is a person to whom s.48A of the Act applies, and the applicant has made a request to the Minister to determine under s.48B that s.48A does not apply. There must not have previously been such a request under s.48B in relation to the applicant, or a request to the Minister for the exercise of the Minister’s power under ss.345, 351 or 417 of the Act.

20. Subclause 050.212(6) is met if the applicant is the subject of a decision that relates to a visa application made in Australia, or a visa cancellation and has made a request to the Minister to substitute a more favourable decision under ss.345, 351 or 417 of the Act. The decision in question must be a decision for which the Minister has the power to substitute a decision under ss.345, 351 or 417, and there must not have previously been such a request, or a request for a determination under s.48B of the Act.

21. Subclause 050.212(6AA) is met if the Minister has substituted a decision under ss.345, 351 or 417 of the Act, but the visa has not been granted because of a visa cap in operation under s.85 of the Act.

22. Subclause 050.212(6B) is met if the applicant has an outstanding request to the Minister under ss.345, 351 or 417 of the Act made before 1 July 2009, and holds, or has held, a Bridging E visa granted before 1 July 2009 on the basis of the applicant meeting cl.050.212(6A) or, for visa applications made on or after 14 September 2009, cl.050.212(6) or (6A).

23. At hearing the applicant recalled applying unsuccessfully for Ministerial intervention in the past, however he was currently awaiting his latest application to the Minister which he had submitted in August or September 2018.  According to the delegate’s decision the applicant made his third application for Ministerial intervention on 22 August 2018. 

24. The Tribunal finds that none of the requirements in subclauses 050.212 (5B), (6), (6AA) or (6B) apply to [the applicant]’s circumstances because:

    ·he is not a person to whom s.48A applies – subclause 050.212(5B);

    ·he has previously sought, or been the subject of, a request for a determination under s.48B, or a request to the Minister for the exercise of the Minister’s power under ss.345, 351 or 417 of the Act – subclause 050.212(6);

    ·the Minister has not substituted a more favourable decision for the decision of a review authority – subclause 050.212(6AA);

    ·he was not granted a Bridging E (Class WE) visa before 1 July 2009 on the basis of the Minister substituting a more favourable decision for the decision of a review authority – subclause 050.212(6B);

25. Based on the evidence before it, the Tribunal finds that [the applicant] does not meet cl.050.212(5B), cl.050.212(6), cl.050.212(6AA) or cl.050.212(6B).

    Findings

26. For these reasons, the Tribunal is not satisfied that at the time of application the applicant was making, nor was the subject of, acceptable arrangements to depart Australia. Therefore the applicant does not meet cl.050.212(2).

27. The Tribunal also finds that [the applicant] does not satisfy the Ministerial intervention elements in subclauses 050.212(5B), cl.050.212(6), cl.050.212(6AA) or cl.050.212(6B).

28. The applicant does not claim to meet any of the remaining alternative criteria in cl.050.212. Accordingly, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

    Subclass 051 (Bridging (Protection Visa Applicant)

29. 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

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

    Stephen Conwell
    Member