2016603 (Migration) - [2020] AATA 5870

2016603 (Migration) [2020] AATA 5870 (24 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2016603
MEMBER:Jennifer Cripps Watts
DATE:24 November 2020
PLACE OF DECISION: Sydney, New South Wales
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 24 November 2020 at 6:21pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – substantive visa application – long and technical visa history – exhausted all options to make an onshore partner visa application – Condition 8503 waiver request unsuccessful – acceptable arrangements to depart Australia – genuine intention to depart Australia – internally inconsistent information – no inquiries made about departing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 48B, 73, 195A, 359AA, 501
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212; Schedule 8, Condition 8503
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 (the delegate) 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 9 November 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). Relevantly to this matter, the primary criteria include cl.050.212.
The decision to refuse to grant the visa was made on 12 November 2020 on the basis that the applicant did not meet cl.050.212(2) or (3) (attached to this decision) because the delegate was not satisfied that the applicant was making, or was the subject of, acceptable arrangements to depart Australia, and he had not applied for a substantive visa that can be granted in Australia.
The hearing was scheduled to account for a four hour time difference between the Australian east coast and Christmas Island. The applicant appeared, by video from Christmas Island (at 10:30am), before the Tribunal, in Sydney (at 2:30pm), on 23 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence by phone from the applicant’s wife, father and brother; respectively, [Ms A], [Mr B] and [Mr C].
The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. Occasional clarification was sought throughout the hearing, which is not unusual in migration hearings where all participants do not speak a common first language and, particularly, where the hearing is a video hearing. The Tribunal inquired, and is satisfied, that all…

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: 2016603 (Migration) [2020] AATA 5870
Case: [2020] AATA 5870
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning an application for a Bridging Visa E (BVE). The applicant sought the BVE on the grounds that they had made, or would make, a valid application for a substantive visa. The Tribunal considered evidence from the Department, the applicant, and their witnesses, as well as submissions from the applicant's migration agent. The applicant's visa history was extensive, including previous unsuccessful applications for protection visas and multiple grants of bridging visas, with a "no further stay" condition generally in effect since 2013.

The central legal issue before the Tribunal was whether the applicant met the criteria for the grant of a Subclass 050 Bridging (General) visa at the time of the Tribunal's decision. Specifically, the Tribunal had to determine if the applicant satisfied either subclause 050.212(2) or 050.212(3) of Schedule 2 to the Migration Regulations 1994. Subclause 050.212(2) requires the Minister to be satisfied that acceptable arrangements to depart Australia are being made, while subclause 050.212(3) requires that a valid application for a substantive visa has been made and not finally determined, or that the Minister is satisfied the applicant will apply for such a visa.

The Tribunal reasoned that the applicant was prevented by section 48B of the Migration Act 1958 from making a further application for a protection visa in the migration zone. Furthermore, the applicant was not entitled to apply for a partner visa onshore due to previous visa refusals and the refusal of waivers for the "no further stay" condition. Consequently, the applicant could not satisfy the requirement under subclause 050.212(3) that they had made or would make a valid application for a substantive visa that could be granted while they were in Australia. The Tribunal also noted that the applicant had not demonstrated they met the criteria under subclause 050.212(2) regarding arrangements to depart Australia.

Accordingly, the Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa, concluding that the applicant did not satisfy the criteria for its grant.

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 Tribunal has considered information material to the issue/s on review, including from the Department and Tribunal files, together with oral evidence given by the applicant and his witnesses at the hearing on 24 November 2020 and oral submissions made by the applicant’s migration agent. The applicant applied for the Bridging Visa E (BVE) that is the subject of the review on 9 November 2020. In the Form 1211 ‘Record and notice of decision’ provided by the applicant, it is included that the applicant was interviewed on 11 November 2020. The Subclass 050 BVE application that is the subject of this review was made on the ground that the applicant would apply for a substantive visa: cl.050.212(3). It is included in the delegate’s decision that they also considered whether the applicant met cl.050.212(2). This case has a long history, including many applications, grants and refusals for a number of visas including a protection visa that was refused in 2014 and affirmed in 2015 (differently constituted), and various applications made to the Minister that were not considered or were not referred, or were otherwise unsuccessful. The applicant has been granted several BVE‘s over the course of his residence in Australia, from the time of his last arrival in November 2013 holding a Subclass 600 visitor visa. The applicant has had a ‘no further stay’ 8305 condition attached to his visas since the end of 2013, other than for the period he applied for a protection visa in 2014/2015 that was not granted and affirmed on review. At the time of this decision, in summary, having raised the relevant applications, the applicant does not meet s.195A guidelines and has had the condition 8503 (no further stay) waiver refused twice, most recently on 2 November 2020. The applicant made s.48B request in December 2018 which was also unsuccessful. In summary, relating to s.48B, the applicant is prevented from making a further protection visa application in the migration zone (as defined). The applicant applied for the BVE on the ground that he had made or would make a substantive (partner) visa application. However, the applicant is not entitled to apply for a partner visa onshore for the reasons given above. It is acknowledged by the Tribunal that it appears that the applicant’s long and fairly technical visa history has caused him some confusion as to whether or not he had applied for a partner visa at any time while onshore. This was not helped by his claim that a former migration agent told him he had made a partner visa application about four or five years ago, which turned out not to be the case. The issue on review The issue in this case is whether the applicant meets the primary criteria for the grant of the visa at the time of the Tribunal’s decision. In this case, the applicant attended the hearing seeking to meet cl.050.212(2) and (3).

Decision

Reasons for decision

For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa. DECISION The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.Jennifer Cripps WattsMemberATTACHMENT 1Schedule 2 to the Migration Regulations 1994 (extract)Subclass 050 – Bridging (General)050.212(1)-(3)050.212 (1)The applicant meets the requirements of subclause (2), (3), (3A), (4), (4AAA), (4AA), (4AB), (5), (5A), (5B), (6), (6AA), (6A), (6B), (7), (8) or (9). (2)An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.(3)An applicant meets the requirements of this subclause if(a)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(b)the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.…

Ratio Decidendi

Legal Principle Established

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