2105972 (Migration) - [2021] AATA 2628

2105972 (Migration) [2021] AATA 2628 (17 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2105972
MEMBER:Peter Vlahos
DATE:17 May 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

This Statement was made on 17 May 2021 at 7.00AM
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – criminal conviction – applicant failed to uphold visa conditions – not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to him – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 269
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.222, 050.223
CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
Liu v MIAC [2008] FMCA 725
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 29 April 2021. 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 and 051.211.
The decision to refuse to grant the visa was made on 4 May 2021. The applicant appeared before the Tribunal on 12 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the [applicant] satisfies the conditions to be granted a Bridging E (Class WE) visa.
Background of the Applicant
[The applicant] is a national of Sri Lanka. He told the Tribunal that he has family members currently living in Sri Lanka. He arrived in Australia by boat in 2012 escaping as he described the many problems he had experienced in Sri Lanka because of the civil war and political instability. As a result of his experiences in his country, the applicant had made an application for Protection visa; that visa had been rejected and was the subject of an appeal to the Federal Circuit Court. However, the applicant was not able to provide the Tribunal with a definite date…

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 2105972 (Migration)

Details

AGLC: 2105972 (Migration) [2021] AATA 2628
Case: [2021] AATA 2628
Decision Date: 17 May 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Bridging E (Class WE) visa made by a Sri Lankan national. The applicant sought this visa while his appeal for a Protection visa was pending before the Federal Circuit Court. The core dispute revolved around whether the applicant met the criteria for the Bridging E visa, specifically concerning acceptable arrangements to depart Australia and the status of his substantive visa application.

The Tribunal was required to determine if the applicant satisfied the conditions for the grant of a Bridging E visa under subclause 050.212(2) of the Migration Regulations 1994, which necessitates being satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. Additionally, the Tribunal had to consider subclause 050.212(3), which is met if the applicant has made a valid application for a substantive visa that has not been finally determined, or if the Tribunal is satisfied the applicant would apply for such a visa.

The Tribunal found that the applicant did not meet the criterion under subclause 050.212(2) because he had not made any arrangements to depart Australia, citing his pending appeal as the reason. The Tribunal, referencing guidance from the Department's Procedures Advice Manual and case law such as *Chen* and *Lin*, was not satisfied that the applicant was making acceptable arrangements to depart. The Tribunal also noted that the applicant did not claim to meet other alternative criteria under cl.050.212. The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the matter should be remitted decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the [applicant] satisfies the conditions to be granted a Bridging E (Class WE) visa.Background of the Applicant [The applicant] is a national of Sri Lanka. He told the Tribunal that he has family members currently living in Sri Lanka. He arrived in Australia by boat in 2012 escaping as he described the many problems he had experienced in Sri Lanka because of the civil war and political instability. As a result of his experiences in his country, the applicant had made an application for Protection visa; that visa had been rejected and was the subject of an appeal to the Federal Circuit Court. However, the applicant was not able to provide the Tribunal with a definite date of hearing. 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. The applicant does not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the applicant does not meet 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]). The applicant informed the Tribunal that he had no arrangements had been made by him to depart Australia for the reason that he had his case for Protection listed for review by the Federal Circuit Court. The Tribunal was told, that the applicant had lodged with that Court’s registry his appeal papers on 24 March 2021 and was awaiting the hearing of the matter. For these reasons, the Tribunal is not satisfied that at the time of application the applicant was making acceptable arrangements to depart Australia. Therefore, the applicant does not meet cl.050.212(2).Substantive visa application Subclause 050.212(3) is met if 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 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.

Ratio Decidendi

Legal Principle Established

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