2107906 (Migration) - [2021] AATA 3014

2107906 (Migration) [2021] AATA 3014 (28 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER: 2107906
MEMBER:Dr Colin Huntly
DATE:28 June 2021
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 28 June 2021 at 8:52am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – immigration status – acceptable arrangements to depart Australia – no current, valid air ticket – no genuine intention to return to home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212

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 June 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 1994 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.212(2), which 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.
The decision to refuse to grant the visa was made on 17 June 2021 on the basis that the applicant did not meet the requirements in cl.050.212(2), which requires that an applicant make, or be the subject of, acceptable arrangements to depart Australia either at the time of making the application or at the time of decision as required at cl.050.221.
The applicant appeared before the Tribunal on 24 June 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issues in this case are whether the applicant continues to meet the relevant time of application ground in cl.050.212 at the time of decision (cl.050.221).

Background

According to his movement records and departmental records, the applicant arrived in Australia on a [temporary] visa [in] July 2016. The visa expired [in] October 2016 and the applicant remained as an unlawful non-citizen (UNC) from that date.
On 10 December 2018, the applicant lodged a Medical Treatment visa (UB-602) application. On 14 December 2018, this visa application was refused.…

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 2107906 (Migration)

Details

AGLC: 2107906 (Migration) [2021] AATA 3014
Case: [2021] AATA 3014
Decision Date: 28 June 2021

CaseChat Overview and Summary

The applicant sought judicial review of a decision by the Immigration Assessment Authority (IAA) to affirm the refusal of their Bridging E (Class WE) visa. The applicant had previously held a substantive visa which expired, and they were seeking a Bridging E visa to remain in Australia while making arrangements to depart. The primary issue was whether the applicant had made acceptable arrangements to depart Australia, as required for the grant of the visa.

The court was required to determine whether the IAA had erred in law in its assessment of the applicant's arrangements for departure. Specifically, the court considered whether the IAA had correctly applied the relevant legislative provisions and policy guidelines in concluding that the applicant had not demonstrated a genuine intention to depart Australia or made acceptable arrangements to do so. This involved examining the evidence before the IAA regarding the applicant's lack of a valid air ticket and their stated intentions.

The court found that the IAA had not erred in law. It reasoned that the absence of a current, valid air ticket, coupled with the applicant's failure to provide satisfactory evidence of a genuine intention to return to their home country, meant that the applicant had not met the criteria for making acceptable arrangements to depart Australia. The IAA was entitled to conclude, based on the material before it, that the applicant's circumstances did not satisfy the requirements for the grant of the Bridging E visa. The application for judicial review was therefore dismissed.

Orders