2017729 (Migration) - [2020] AATA 6201

2017729 (Migration) [2020] AATA 6201 (22 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2017729

MEMBER:Sean Baker
DATE:22 December 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:
· cl.050.212(2) of Schedule 2 to the Regulations; and
· cl.050.221 of Schedule 2 to the Regulations; and
· cl.050.223 of Schedule 2 to the Regulations.
The Tribunal also directs the primary decision maker
· to indicate to the applicant that conditions 8101, 8207, 8401, 8505, 8511, 8512 and 8564 will be imposed if the visa is granted; and
· to require a security of $15, 000 AUD for compliance with the conditions.

Statement made on 22 December 2020 at 12:09pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – complying with conditions imposed on visa – acceptable arrangements to depart Australia – evidence of valid travel ticket – time to sell belongings before departure – willingness to provide a security bond – plans for a wedding in Vietnam – not engaging in criminal conduct – decision under review remitted
LEGISLATION
Migration Act 1958, ss 73, 269
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 0050.223, 050.617; Schedule 8, Visa Conditions 8101, 8207, 8401, 8505, 8511, 8512, 8564
CASES
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
Liu v MIAC [2008] FMCA 725
VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 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) and a decision made by an authorised officer relating to requiring a security under s.269 of the Act.
The applicant applied for the visa on 2 December 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.050.223.
The decision to refuse to grant the visa and the decision relating to requiring a security was made on 8 December 2020 on the basis that the delegate was not satisfied the applicant would abide by conditions imposed and found that no amount of security would lead to compliance .The applicant appeared before the Tribunal on 18 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. The Tribunal hearing was conducted with the assistance…

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: 2017729 (Migration) [2020] AATA 6201
Case: [2020] AATA 6201
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a Subclass 050 (Bridging (General)) visa. The applicant sought to satisfy criterion cl.050.212(2) of Schedule 2 to the Regulations, which requires the Minister, or the Tribunal on review, to be satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. The Tribunal was required to determine whether the applicant had met this criterion, as well as cl.050.221 and cl.050.223.

The Tribunal considered the meaning of "acceptable arrangements to depart Australia," noting that it is not defined in the Regulations but that guidance can be found in departmental procedures and case law, such as *Chen v MIMIA* [2001] FCA 285 and *Lin v MIMIA* [2001] FCA 283. The Tribunal affirmed that whether an applicant is making acceptable arrangements is a question of fact for the decision-maker, involving an element of discretion and requiring consideration of what the applicant has done to date and the genuineness of their intentions. Matters such as the absence of travel documents or tickets, or a prolonged failure to secure them, could support a conclusion that acceptable arrangements have not been made. Departmental guidelines suggest that providing evidence of a valid ticket and reservation within an acceptable timeframe, or indicating an intention to arrange departure and make necessary arrangements within such a timeframe, would satisfy the criterion.

Despite the applicant initially providing no evidence to the Department beyond the application form, the delegate had accepted that the applicant met the criterion. The Tribunal, in reviewing the matter, considered a short submission from the applicant's representative, statutory declarations from the applicant's partner, sister, and a friend, a bank statement from the friend, and evidence of a flight ticket price to Ho Chi Minh City. Based on these submissions and evidence, the Tribunal concluded that the applicant met cl.050.212(2), as well as cl.050.221 and cl.050.223. Consequently, the Tribunal remitted the matter for reconsideration by the Minister, directing that the applicant meets these specified criteria and informing the primary decision-maker to indicate that certain conditions would be imposed if the visa were granted, along with a requirement for a $15,000 AUD security for compliance.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant will abide by conditions imposed on the visa. 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. In this case, the applicant is seeking to meet cl.050.212(2). The applicant does not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the applicant meets cl.050.212.Acceptable arrangements to depart Australia 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: 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]). Whether an applicant is making acceptable arrangements to depart Australia is a question of fact for the decision maker, with an element of discretion or judgment lying at the heart of it.[1] It is appropriate to consider what the person has done to date.[2][1] Chen v MIMIA [2001] FCA 285 at [21]; Lin v MIMIA [2001] FCA 283 at [21].[2] Chen v MIMIA [2001] FCA 285 at [11]; Lin v MIMIA [2001] FCA 283 at [11]. Matters such as the absence of a valid travel document or ticket, failing to secure those documents over a long time and other indications of disregard for immigration law can support a conclusion that the applicant has not made acceptable arrangements to depart Australia.[3] The Tribunal is also entitled to consider whether an applicant’s intentions are genuine.[4][3] Chen v MIMIA [2001] FCA 285 at [22]; Lin v MIMIA [2001] FCA 283 at [22].[4] Lin v MIMIA [2001] FCA 283 at [30]. Departmental guidelines (PAM 3) indicate that an applicant will satisfy cl 050.212(2) if they provide acceptable evidence of a valid ticket and a reservation to leave Australia within an acceptable timeframe, or if they indicate an intention to arrange departure and will make the necessary arrangements within an acceptable timeframe. The applicant did not provide any evidence to the Department other than the application form. Nonetheless the delegate accepted that the applicant met this ground and was making acceptable arrangements to depart. To the Tribunal the representative supplied a short submission, statutory declarations from the applicant’s [partner], her sister, [named], and from a friend of the applicant, [Friend A]. Also provided was a bank statement of the applicant’s friend, [Friend A] and evidence of ticket price during January 2021 for a flight to Ho Chi Minh city.

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:·cl.050.212(2) of Schedule 2 to the Regulations; and·cl.050.221 of Schedule 2 to the Regulations; and·cl.050.223 of Schedule 2 to the Regulations. The Tribunal also directs the primary decision maker· to indicate to the applicant that conditions 8101, 8207, 8401, 8505, 8511, 8512 and 8564 will be imposed if the visa is granted; and·to require a security of $15, 000 AUD for compliance with the conditions.Sean BakerMember

Ratio Decidendi

Legal Principle Established

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