2015440 (Migration) - [2020] AATA 4700

2015440 (Migration) [2020] AATA 4700 (26 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2015440
MEMBER:David Barker
DATE:26 October 2020
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 26 October 2020 at 2:45pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – period as unlawful non-citizen after visa ceased – criminal convictions, imprisonment and immigration detention – no application for substantive visa – previously stated preference to remain in Australia, now wants to return to home country to assist elderly mother – finalisation of finances in Australia – offer of accommodation and living expenses from relative – COVID-19 travel restrictions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73, 189(1)
Migration Regulations 1994 (Cth), 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

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 12 October 2020. 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).
The decision to refuse to grant the was made on 15 October 2020 on the basis that the applicant did not meet required criteria in cl.050.212. The delegate found that there was no evidence that the applicant was making, or was the subject of, acceptable arrangements to depart Australia and that there was no current evidence of the applicant intending to lodge, or that he had lodged, a valid substantive visa application with the Department.
The applicant appeared before the Tribunal on videoconference, utilising MS teams, on Friday 23 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The Tribunal gave the applicant until 26 October 2020 to provide further evidence or arguments that he may ask to be considered before a decision is made in this matter. On 26 October 2020 the Tribunal received further information from the applicant as to the identity and income of his younger [relative] and a support letter from that person.
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 has…

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.

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Details

AGLC: 2015440 (Migration) [2020] AATA 4700
Case: [2020] AATA 4700
Decision Date: 26 October 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning an applicant's eligibility for a Bridging E (Class WE) visa. The applicant, a national of Vietnam, had been in Australia since December 2013 on a student visa which ceased in March 2018, rendering him an unlawful non-citizen. His immigration status subsequently came to the attention of authorities due to criminal convictions and periods of imprisonment, followed by immigration detention. The Tribunal considered the applicant's immigration history, including his period of unlawful status, criminal convictions, imprisonment, and detention, as well as a previously withdrawn Protection visa application.

The primary legal issue before the Tribunal was whether the applicant had met the criteria for the grant of the Bridging E visa. This involved assessing whether the applicant had made acceptable arrangements to depart Australia, particularly in light of his prolonged period as an unlawful non-citizen, his criminal history, and his initial stated preference to remain in Australia. The Tribunal also considered the applicant's later expressed desire to return to Vietnam to assist his elderly mother, finalise his finances, and the offer of accommodation and living expenses from a relative, alongside the impact of COVID-19 travel restrictions.

The Tribunal affirmed the delegate's decision not to grant the Bridging E visa. The applicant had become an unlawful non-citizen after his student visa ceased and had not applied for a substantive visa. Despite initially stating a preference to remain in Australia and not depart voluntarily, he later expressed a desire to return to Vietnam. However, the Tribunal found that the applicant did not meet the primary criterion for the visa, which required acceptable arrangements to depart Australia. Furthermore, the Tribunal noted that the applicant was not a relevant eligible non-citizen for a Bridging (Protection Visa Applicant) visa (Subclass 051), which was also considered in the application.

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 has met a primary criterion for the grant of the visa. The following information about the applicant’s immigration history is taken from the delegate’s decision record, which was provided to the Tribunal by the applicant, from the applicant’s evidence and from other material before the Tribunal. The applicant is a national of Vietnam and is [Age] years old. The applicant first arrived in Australia [in] December 2013 as the holder of a student visa (subclass TU573), which was valid until 15 March 2018. Upon that visa ceasing the applicant became an unlawful noncitizen and concealed himself in the community. The applicant’s circumstances again came to the attention of the Department when they were informed that he had been remanded into criminal custody in NSW [in] June 2019, charged with “Cultivate a Prohibited Plant, Supply a Prohibited Drug, Possess Prohibited Drug, Deal With Property Proceeds of Crime with Value <$100000”. [In] September 2019, the applicant was convicted and sentenced to a fixed term of four months imprisonment for “Supply Prohibited Drug <=Small Quantity-T2, Cultivate Prohibited Plant>Small & <=Indictable Quantity-T1, Deal with Property Proceeds of Crime < $100000- T2”. [In] July 2020, the applicant was convicted and sentenced to 18 months imprisonment with a non-parole period of 12 months for “Knowingly Take Part-Cultivate >= Comm Qty- Cannabis-SI”. The applicant was released from criminal detention in the NSW prison system [in] September 2020, at which time he was located and detained by Australian Border Force officers pursuant to section 189 (1) of the Act and subsequently transferred to the Villawood Immigration Detention Centre (VIDC), where he currently remains. The applicant had on 20 June 2020 lodged a Protection visa application (subclass XA866) which he subsequently withdrew on 30 June 2020. A Bridging Visa E (BVE) on criminal detention grounds, which the applicant was granted on 17 September 2020, ceased on 21 September 2020. The BVE application which is the subject of the current review before the Tribunal was lodged on 12 October 2020. The Detention Review Officer was notified about the lodgement of this application on 13 October 2020, as required under Item 1305(3)(c) of the Regulations. It is the refusal of this application on 15 October 2020 that is the focus of the current review. During Located Person Interview the applicant participated in, on 22 September 2020, when asked “do you intend to apply for an Australian visa?” the applicant advised that he did not want to return to Vietnam and that he would like to apply for Protection visa. When asked “are you willing to depart Australia voluntarily?” the applicant stated “no”. No application for a Protection visa was subsequently lodged by the applicant.

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.David BarkerMember

Ratio Decidendi

Legal Principle Established

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