1918707 (Migration) [2021] AATA 2177 (13 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1918707
MEMBER:James Silva
DATE:13 April 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Statement made on 13 April 2021 at 12:13pm
CATCHWORDS MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) –first request for Ministerial intervention unsuccessful – protection visa refused – no outstanding migration matters – applicant made no genuine attempt to make arrangements to depart Australia – decision under review affirmed
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).
On 16 June 2019, the applicant lodged an application for a Bridging visa E (BVE). On 25 June 2019, the Minister’s delegate refused the application. The applicant seeks review of the delegate’s decision.
The delegate refused the application on the basis that the applicant did not meet cl.050.222, which requires that the applicant has been interviewed by an authorised officer (except in certain circumstances that are not relevant to this matter). As discussed below, the Tribunal considers the key issue in this case is whether the applicant satisfies the primary criterion for the grant of the visa. Specifically, he must meet one of the alternatives set out in cl.050.212(2)-(9) at the time of application, 16 June 2019. He must continue to satisfy this criterion (by meeting any one of the alternatives in cl.050.212(2)-(9)) at the time of this decision, hence on 8 January 2010: cl.050.221. A summary of the relevant law is at the attachment to this decision.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The key issue is whether the applicant meets any of the primary criteria for the grant of a Bridging visa E. If he met one or more of these at the time of application and the time of decision, the Tribunal would be required to assess whether he would comply with the visa conditions.
Evidence and Background
The Tribunal has before it the following relevant material:
§ The application for a Bridging visa E, lodged online on 16 June 2019.
§ The delegate’s decision record of 25 June 2019.
§ The review application lodged on 11…
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 1918707 (Migration)
Sign in free to access the full text
Details
AGLC
1918707 (Migration) [2021] AATA 2177
Case
[2021] AATA 2177
Decision Date
CaseChat Overview and Summary
The applicant, a citizen of Sri Lanka who entered Australia without authorisation in September 2012, sought review of the Administrative Appeals Tribunal's decision to affirm the refusal of his Bridging E (Class WE) visa. The applicant's protection visa application had been refused, and subsequent judicial review by the Full Federal Court in September 2018 did not alter this outcome. The applicant had been granted multiple Bridging E visas since January 2013, with the most recent grant in March 2019 being subject to conditions related to departure arrangements and an ongoing request for Ministerial intervention.
The primary legal issue before the Tribunal was whether the applicant met any of the criteria for the grant of a Bridging E visa, specifically under clause 050.212 of Schedule 2 to the Migration Regulations. This involved assessing whether the applicant had made acceptable arrangements to depart Australia, had an ongoing request for Ministerial intervention, or met other specified criteria that would allow for the grant of a bridging visa. The Tribunal also considered whether the applicant continued to satisfy these criteria at the time of the decision.
The Tribunal found that the applicant met certain primary criteria for the Bridging E visa, including being an eligible non-citizen and not falling within excluded categories. However, the Tribunal focused on the criteria related to Ministerial intervention. While the applicant had made a request for Ministerial intervention, the Tribunal noted that the relevant provisions, such as subclauses 050.212(5B) and (6), require this to be a "first request" for Ministerial intervention or a request for substitution of a more favourable decision. The Tribunal determined that the applicant's first request for Ministerial intervention had been unsuccessful, and there was no indication of a subsequent or ongoing request that would satisfy the criteria for the grant of the Bridging E visa. The Tribunal also considered the criteria for a Bridging (Protection Visa Applicant) visa (Subclass 051) and found the applicant did not meet the requirements for that visa either.
Consequently, the Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The hearing and interview were conducted with the assistance of an interpreter in the Tamil and English languages. The applicant is unrepresented in this matter. At hearing, the Tribunal alerted the applicant to legal professional privilege when he started to discuss the advice that his previous lawyer(s) had given him.Background The applicant is a [age] year old man from Sri Lanka. He entered Australia [in] September 2012, by boat and without permission. The applicant applied for a protection visa (Safe Haven Enterprise visa), which the Department refused. The Independent Assessment Authority affirmed the decision to refused to grant the visa. The applicant sought judicial review of that decision, and the Full Federal Court finally determined the matter [in] September 2018. Department records[1] indicate that the applicant was granted a Humanitarian Stay (Temporary) subclass 449 visa on 31 January 2013. This visa ceased on 7 February 2013. Section 172(1)(c) states that a person who is refused immigration clearance, or bypasses immigration clearance, and is subsequently granted a substantive visa, is deemed to be ‘immigration cleared’. The subclass 449 visa grant on 31 January 2013 therefore means that the applicant is an ‘eligible non-citizen’ under s.72(1)(a). [1] The Tribunal has drawn on the Department’s movement records, and case notes dated 15 October 2018, 18 December 2018 and 20 March 2019. The applicant was granted 12 Bridging E visas, at various times between January 2013 and June 2019.[2] Department case notes relating to the three most recent visa grants include reference to the primary criterion that he met at the relevant times.§ On 15 October 2018, the bridging visa was granted ‘on departure grounds’. The delegate was satisfied that he was the subject of acceptable arrangements to depart, as ‘Client was advised to contact IOM to make departure arrangements’.§ On 16 December 2018, the bridging visa was granted ‘on MI grounds’, namely on the basis that the applicant had made a first request for Ministerial intervention.§ On 20 March 2019, the case notes indicated that the applicant had an ongoing request for Ministerial intervention and, if that were negative, he would be required to contact IOM to make departure arrangements. The delegate was satisfied, presumably on the basis that the applicant would make contact with IOM if needed, that he was the subject of acceptable arrangements to depart Australia.[2] 31 January to 31 July 2013; 8 September 2014 to 8 September 2015; 12 September to 12 December 2015; 12 December 2015 to 12 April 2016; 9 March to 9 July 2016; 9 May 2016 to 6 March 2017; 6 March to 9 November 2017; 9 November 2017 to 25 May 2018; 25 May 2018 to 10 October 2018; 15 October to 26 November 2018; 18 December 2018 to 19 March 2019; and most recently, 20 March to 19 June 2019. At interview and hearing, the applicant said that he had not been aware of the Department’s attempts to contact him for an interview (by telephone, SMS and email, according to the decision record), and indicated some frustration at this. At face value, the decision record does suggest that the delegate would have granted the bridging visa had the applicant been available for interview.Consideration and assessment
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 key issue is whether the applicant meets any of the primary criteria for the grant of a Bridging visa E. If he met one or more of these at the time of application and the time of decision, the Tribunal would be required to assess whether he would comply with the visa conditions.Evidence and Background The Tribunal has before it the following relevant material:§ The application for a Bridging visa E, lodged online on 16 June 2019.§ The delegate’s decision record of 25 June 2019.§ The review application lodged on 11 July 2019, attached to which was the delegate’s decision record.§ The Tribunal has also accessed the Department’s movement records, which give a detailed account of the applicant’s migration history, and the Department’s Integrated Clients Service Environment (ICSE) system records, in particular relating to prior visa grants.§ On 1 April 2021, the Tribunal wrote to the applicant pursuant to s.359A, inviting his comment/response at interview on 7 April 2021, immediately prior to the hearing, to potentially adverse information. This information related to: (a) his failure to depart Australia, despite prior visa grants on ‘departure grounds’; (b) the finalisation of his protection visa matter, by judicial review, [in] September 2018; and (c) the finalisation of his first Ministerial intervention as ‘not referred’, on 17 April 2019. The applicant appeared before the Tribunal to give evidence and present arguments on 7 April 2021. Immediately prior to the hearing, there was an interview in which the applicant provided his comments/responses to information that the Tribunal had put to him by letter dated 1 April 2021. The hearing and interview were conducted with the assistance of an interpreter in the Tamil and English languages. The applicant is unrepresented in this matter. At hearing, the Tribunal alerted the applicant to legal professional privilege when he started to discuss the advice that his previous lawyer(s) had given him.Background The applicant is a [age] year old man from Sri Lanka. He entered Australia [in] September 2012, by boat and without permission. The applicant applied for a protection visa (Safe Haven Enterprise visa), which the Department refused. The Independent Assessment Authority affirmed the decision to refused to grant the visa. The applicant sought judicial review of that decision, and the Full Federal Court finally determined the matter [in] September 2018. Department records[1] indicate that the applicant was granted a Humanitarian Stay (Temporary) subclass 449 visa on 31 January 2013. This visa ceased on 7 February 2013. Section 172(1)(c) states that a person who is refused immigration clearance, or bypasses immigration clearance, and is subsequently granted a substantive visa, is deemed to be ‘immigration cleared’. The subclass 449 visa grant on 31 January 2013 therefore means that the applicant is an ‘eligible non-citizen’ under s.72(1)(a). [1] The Tribunal has drawn on the Department’s movement records, and case notes dated 15 October 2018, 18 December 2018 and 20 March 2019.
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.James SilvaMemberATTACHMENT: RELEVANT LAWClass WE visas contain two subclasses: Subclasses 050 and 051. In the present case, the applicant seeks 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). The primary criteria for the grant of a subclass 050 visa include subclause 050.212. This states that, 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.Substantive visa applicationThe applicant meets subclause 050.212(3) if s/he 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.Acceptable arrangements to depart AustraliaSubclause 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]).Judicial review, merits review, s.137K revocationSubclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.Subclause 050.212(4) is met if:(a)the applicant has applied for judicial review of a decision in relation to a substantive visa (other than a decision to refuse the visa); or (aa)the Minister has applied for judicial review of a decision in relation to the applicant’s substantive visa application (other than a decision relating to refuse the visa); or(b)the applicant has applied for merits review of a decision to cancel a visa; or(ba)the applicant has applied under s.137K for revocation of the cancellation of a visa; or(bb)the applicant has applied for merits review of a decision under s.137L not to revoke the cancellation of a visa; or(c)the Minister (or Tribunal) is satisfied that the applicant will make an application of a kind referred to in cl.050.212(4)(b), (ba) or (bb); or(d)the applicant has applied for judicial review of the validity of a law that affects their eligibility to apply for a substantive visa or their entitlement to be granted or continue to hold a substantive visa.Subclause 050.212(4AA) is met if the applicant is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in cl.050.212(3A)(b), (4)(a), (4)(aa) or (4)(d), that other person is not a party to a representative proceeding, and the applicant made a combined substantive visa application with that other person’s application.Subclause 050.212(9) is met if a decision to refuse the applicant (or a member of the family unit who has made a combined application) a Class BC or BI visa is the subject of valid judicial review proceedings that have not been completed, and the applicant (or member of the family unit) does not satisfy cl.010.211(6)(c) for the grant of a Bridging A (Class WA) visa.Consequential cancellation (review/revocation of primary cancellation)Subclause 050.212(5) is met if the applicant held a visa that was cancelled under s.140(1) or (3) because another person’s visa was cancelled, and that other person has applied for review of their visa cancellation decision (or alternatively, the Tribunal is satisfied the other person will make such an application).Subclause 050.212(5A) is met if the applicant held a visa that was cancelled under s.140(1), (2) or (3) because another person’s visa was cancelled under s.137J, and that other person has applied for revocation of their visa cancellation under s.137K or has applied for merits review of a non-revocation decision made under s.137L (or alternatively, the Tribunal is satisfied the other person will make such an application).Court declaration / review of citizenship decisionSubclause 050.212(4AAA) is met if the applicant has applied for a declaration from a Court that the Migration Act does not apply to the applicant, or has applied for judicial review or merits review of a decision made in relation to the applicant under the Australian Citizenship Act, and those proceedings have not been completed.Subclause 050.212(4AB) is met if the applicant is a member of the immediate family (as defined under r.1.12AA) of a person who meets the requirements of cl.050.212(4AAA), or is a brother or sister (who has not turned 18) of a person who meets the requirements of cl.050.212(4AAA) and who has not turned 18.Ministerial interventionSubclause 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.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. _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.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).Compelling need to workSubclause 050.212(6A) is met if the applicant holds a Bridging E visa that was granted on the basis of meeting cl.050.212(6AA), the applicant is the subject of a favourable exercise of the Ministerial power under ss.345, 351 or 417 of the Act, and the Tribunal is satisfied that the applicant has a compelling need to work.Subclause 050.212(8) is met if the applicant holds a Bridging E visa that was granted as a result of a valid application for a substantive visa that could be granted onshore and is subject to condition 8101, and the Tribunal is satisfied that the applicant has a compelling need to work. ‘Compelling need to work’ is defined in r.1.03 of the Regulations as having the meaning set out in r.1.08. Regulation 1.08 provides that a non-citizen has a compelling need to work if he or she is in financial hardship. Financial hardship is not defined in the legislation, however Departmental guidelines (PAM3) provide guidance on matters that may be relevant in determining financial hardship.Criminal DetentionSubclause 050.212(7) is met if the applicant is in criminal detention, and no criminal justice stay certificate or warrant is in force. A person is in ‘criminal detention’ if he or she is serving a term of imprisonment, including periodic detention, following conviction for an offence, or is in prison on remand. However, a person is not in criminal detention where they are subject to a community service order, on parole after serving part of a term of imprisonment, or on bail awaiting trial (r.1.09). Periodic detention is defined in r.1.03 to mean a system of restriction of liberty by which periods at liberty alternate with periods in prison.
Ratio Decidendi
Legal Principle Established
At interview and hearing, the applicant said that he had not been aware of the Department’s attempts to contact him for an interview (by telephone, SMS and email, according to the decision record), and indicated some frustration at this. At face value, the decision record does suggest that the delegate would have granted the bridging visa had the applicant been available for interview.Consideration and assessment The delegate was satisfied that the applicant met cl.050.211(1) and cl.050.211(2) at the time of application (on 16 June 2019). The Tribunal agrees with these conclusions. It is satisfied that, as the holder of a Bridging via E, the applicant met cl.050.212(1)(b). It also satisfied that he met cl.050.212(2). First, he was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9) or (10), as he is deemed to have been ‘immigration cleared’ under s.172(1)(c). Second, he also does not fall within the scope of r.2.20(17), as he held a Bridging visa E and was not an unlawful non-citizen at the time of application. 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. On his online bridging visa E application form, the applicant indicated that he was seeking to meet cl.050.212 on the basis of an ongoing request for Ministerial intervention. As noted above, in the decision under review, the delegate stated their satisfaction that the applicant was ‘subject to departure arrangements’. The Tribunal therefore addresses these primary criteria in that order, and then the remaining primary criteria.Ministerial intervention The applicant indicated on his bridging visa application form that he requested the Minister to intervene in his case on 1 June 2019. He did not provide details of the request, except to state that he asked for Ministerial intervention on the basis of changed circumstances in Sri Lanka. § This suggests that the request was for the Minister to determine under s.48B that s.48A does not apply, in other words, to allow him to make a further protection visa application. Subclause 050.212(5B) requires that 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. § The applicant may also be seeking to meet subclause 050.212(6), on the basis that he 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. Significantly, both cl. 050.212(5B) and (6) also require this must be a first request (Tribunal emphasis) 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.