2109047 (Migration) - [2021] AATA 3422

2109047 (Migration) [2021] AATA 3422 (12 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2109047
MEMBER:De-Anne Kelly
DATE:12 August 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 12 August 2021 at 1:33pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – compliance with conditions and acceptable arrangements to depart Australia – requirement of a security – visa history, including unsuccessful application for protection visa, applications for bridging visas and periods as unlawful non-citizen – criminal offences, imprisonment and immigration detention – no arrangements to depart while High Court application in progress – removal as soon as practicable – travel restrictions and arrangements by home country and Australia – non-refoulement – general economic conditions – offers of support by brother and employers – hardship to wife and children – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), (9), 36, 48, 48A, 48B, 73, 189, 195, 197, 197C, 198, 269, 376, 501CA(4)
Migration Regulations 1994 (Cth), rr 1.03, 1.09, Schedule 2, cls 050.211(1), 050.212(2)-(9), 050.221, 050.223, 050.224, Schedule 8, condition 8564
CASES
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
WKMZ v MICMSMA [2021] FCAFC 55
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 Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (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 3 July 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 (Cth) (the Regulations). Relevantly to this matter, the primary criteria include cl 050.223 and cl 050.212(2) – (9).
The decision to refuse to grant the visa was made on 14 July 2021 on the basis that the delegate was not satisfied that the applicant satisfied cl.050.223 since he was not satisfied he would abide by Condition 8564 – Must not engage in Criminal conduct and further was not satisfied he met the requirements of cl.050.212(2) because there was no evidence before the delegate that the applicant was making or was the subject of making acceptable arrangements to depart Australia.
The applicant appeared before the Tribunal on 2 August 2021 to give evidence and present arguments. The Tribunal…

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 2109047 (Migration)

Details

AGLC: 2109047 (Migration) [2021] AATA 3422
Case: [2021] AATA 3422
Decision Date: 12 August 2021

CaseChat Overview and Summary

This case concerned an application for review of a decision to refuse a Bridging E (Class WE) visa. The applicant, a national of Lebanon, had a complex migration and criminal history, including periods as an unlawful non-citizen and imprisonment for criminal offences. The applicant sought the bridging visa to facilitate his departure from Australia and return to his family in Lebanon.

The primary legal issues before the court were whether the applicant met the criteria under subclause 050.212(2) of the Migration Regulations 1994, specifically whether the Minister was satisfied that the applicant was making, or was the subject of, acceptable arrangements to depart Australia, and under subclause 050.223, whether the applicant would abide by the conditions of the visa if granted. The court also considered the applicant's immigration status under subclause 050.211.

The court reasoned that the applicant had not demonstrated acceptable arrangements to depart Australia. Despite offers of support from family and employers, and expressions of a desire to return home, the applicant's history of non-compliance with visa conditions and his prolonged periods as an unlawful non-citizen weighed against a finding that he would genuinely make arrangements to depart. The court also noted that psychological reports submitted were outdated and prepared for a previous court appearance, thus carrying limited weight. The court affirmed the decision under review, finding that the applicant failed to satisfy the relevant criteria for the grant of a Bridging E visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Documents including the following were provided as well as documents listed in the review application form and described in (a) to (k). a.File:26.6.18 Defence Bundle on Sentence.pdf; b.[Ms E].pdf; c.Community Support.pdf; d.Document (1).pdf; e.image_123927839.JPG; f.[F].pdf; g.letter.pdf: h.low_res_mono_BW1014.PDF; i.[Mr C].pdf; j.WhatsApp Image 2021-07-12 at 17.55.31.jpeg; k.Notification and decision for Department (Interviews).Documents including the following were provided and considered.1)Psychologist Report under the hand of [Mr G].2)Psychologist Report under the hand of [Ms H].3)Psychologist Report under the hand of [Mr I].4)Letter from [Ms J] (the applicant’s wife).5)Letter date 9 July 2021 from the applicant to the Department.6)Letter from [Dr K] dated 16 June 2021, regarding treatment of the applicant’s wife.7)Character reference under the hand of [L].8)Character reference from [Mr C] (the applicant’s brother).9)Character reference from [Mr B] of [Company 1].10)Record and Notice of Decision - Bridging Visa E dated 3 July 2021.11)Notification of refusal of application for Bridging E (Class WE) Visa dated 14 July 2021 including Attachment A – Question 9 – Form 1211.12)Bank statement for [Company 1].13)Letter of support 7 July 2021, from [Ms E].14)Letter of support 8 July 2021 from [Organisation].15)Letter of support 10 July 2021 from [F].16)Letter of support from [Mr A].17)Letter of support dated 6 July 2021 from [F].18)Two (2) letters from the applicant to the Department.19)Letter from Medical Centre regarding psychological treatment for the applicant’s wife.20)Letter of support undated from [Mr C].21)Bank statement for [Mr A] showing balance of some $2,000.22)Bank statement for [Company 2] showing balance of $9,000.23)Video of (applicants) two young children in bed saying they want their Father back home and they want him to take them to school and they love him.24)Letter of support undated from [Mr B], Director of [Company 1].25)Notification Assessment Record from the Department.26)Property inventory and Information about detention.27)Located Person Interview.28)Online application for Bridging visa E dated 3 July 2021.29)Notification of refusal of an application for a Bridging E (Class WE) visa including Notice of Decision.30)NSW Police report.31)Transcript of interview with applicant and Department dated 6 July 2021.Documents including the following were submitted on the morning of the first hearing.32)Barrister - “Applicants Statement of facts, issues and contentions”. 33)Form authorising the barrister to represent the applicant.34)Barristers - “Applicant’s Supplementary Submissions”. Background. [The applicant] is currently an unlawful non-citizen held in detention on Christmas Island. He was detained on 2 May 2018 pursuant to removal to Lebanon following his term of imprisonment and was detained at Christmas Island Detention Centre on 13 September 2020 for the purpose of removal where he remains. The applicant is a national of Lebanon and the eldest of four (4) boys. The applicant has a Father and brother in Australia, the former is married with a young child while the latter has a [business]. The applicant has a Mother and younger brother in Lebanon with the former battling breast cancer and the young brother attending school. The applicant was sponsored on a family visa to Australia in 2009. While on holiday in Lebanon, [Ms J] met the applicant who is now her husband.

Evidence

Evidence Before The Court

[Mr A] said the applicant is a very decent man and the best friend he ever had. He owns his own company and can give the applicant a job, pay rent for him and offer any other assistance. When the Tribunal asked this witness if the applicant had ever requested financial assistance in the past, he advised that he had not. When asked if he had told the applicant that he would help him, [Mr A] he said, “he knows that I would assist him".CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant satisfies cl 050.212(2) and cl 050.223 which provide as follows.050.212(2)(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. 050.223 The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.Immigration status of the applicant - cl 050.211 Clause 050.211 is met if, at the time of application: (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and (2)the applicant was not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). The applicant is an un-lawful non-citizen. The applicant must continue to satisfy this criterion at the time of decision: cl 050.221. Accordingly, the applicant meets cl 050.211(1). The applicant is not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). Accordingly, the applicant does not meet cl 050.211(2). Therefore, the applicant meets cl 050.211.The grounds for seeking the visa - cl 050.212 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 apparently seeking to meet any or all of the criteria in cl 050.212. The Tribunal took the applicant through the criteria and examined his claims including those of the barrister. For the reasons below, the applicant does not meet cl 050.212.Subclause 050.212(2) - Acceptable arrangements to depart Australia This clause provides as follows.(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. 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 Departmental guidelines (PAM3), whilst not binding on the Tribunal, nevertheless provide 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]).

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Interpretation Twice during the first hearing, the Tribunal asked the applicant if he could understand the interpretation. He responded that he could understand, and this was evidenced by clear and appropriate responses to questions. The same interpreter attended the second hearing and again the Tribunal asked if the interpretation was clear and the applicant confirmed he could understand the interpretation.Certificate s376 The Tribunal disclosed to the applicant a s376 Certificate which related to internal documents from Australian Border Force which appeared to be valid to the Tribunal. The Tribunal invited the applicant to comment on the validity of the documents and they could have a adjournment if they requested it to consider the information. The certificate covered the following documents which the Tribunal gave the gist of the information covered in the documents as below. On 6 August the Tribunal emailed a copy (redacted) of the Certificate to the applicant and invited him to comment on the validity. No response has been received to date.1)Record and Notice of Decision - Bridging Visa E dated 3 July 2021.2)Notification of refusal of application for Bridging E (Class WE) Visa dated 14 July 2021 including Attachment A – Question 9 – Form 1211.3)NSW Police Report on the applicant.Familiar with the documents. Documents including the following were provided as well as documents listed in the review application form and described in (a) to (k). a.File:26.6.18 Defence Bundle on Sentence.pdf; b.[Ms E].pdf; c.Community Support.pdf; d.Document (1).pdf; e.image_123927839.JPG; f.[F].pdf; g.letter.pdf: h.low_res_mono_BW1014.PDF; i.[Mr C].pdf; j.WhatsApp Image 2021-07-12 at 17.55.31.jpeg; k.Notification and decision for Department (Interviews).Documents including the following were provided and considered.1)Psychologist Report under the hand of [Mr G].2)Psychologist Report under the hand of [Ms H].3)Psychologist Report under the hand of [Mr I].4)Letter from [Ms J] (the applicant’s wife).5)Letter date 9 July 2021 from the applicant to the Department.6)Letter from [Dr K] dated 16 June 2021, regarding treatment of the applicant’s wife.7)Character reference under the hand of [L].8)Character reference from [Mr C] (the applicant’s brother).9)Character reference from [Mr B] of [Company 1].10)Record and Notice of Decision - Bridging Visa E dated 3 July 2021.11)Notification of refusal of application for Bridging E (Class WE) Visa dated 14 July 2021 including Attachment A – Question 9 – Form 1211.12)Bank statement for [Company 1].13)Letter of support 7 July 2021, from [Ms E].14)Letter of support 8 July 2021 from [Organisation].15)Letter of support 10 July 2021 from [F].16)Letter of support from [Mr A].17)Letter of support dated 6 July 2021 from [F].18)Two (2) letters from the applicant to the Department.19)Letter from Medical Centre regarding psychological treatment for the applicant’s wife.20)Letter of support undated from [Mr C].21)Bank statement for [Mr A] showing balance of some $2,000.22)Bank statement for [Company 2] showing balance of $9,000.23)Video of (applicants) two young children in bed saying they want their Father back home and they want him to take them to school and they love him.24)Letter of support undated from [Mr B], Director of [Company 1].25)Notification Assessment Record from the Department.26)Property inventory and Information about detention.27)Located Person Interview.28)Online application for Bridging visa E dated 3 July 2021.29)Notification of refusal of an application for a Bridging E (Class WE) visa including Notice of Decision.30)NSW Police report.31)Transcript of interview with applicant and Department dated 6 July 2021.Documents including the following were submitted on the morning of the first hearing.32)Barrister - “Applicants Statement of facts, issues and contentions”. 33)Form authorising the barrister to represent the applicant.34)Barristers - “Applicant’s Supplementary Submissions”. Background.

Ratio Decidendi

Legal Principle Established

The applicant applied for a further bridging visa WE (050) on 3 July 2021 which was refused on 14 July 2021 and that is the review application that is the subject of this case.Migration History[July] 2009Arrived on a Sponsored Family Visitor visa Subclass UL 679 valid to 12 Oct 2009[Oct] 2009 Departed Australia.[May] 2011Arrived on a Sponsored Family Visitor visa Subclass UL 679 valid to 14 Aug 2011.[Aug] 2011 Departed Australia.[Dec] 2013Arrived on a Sponsored Family Visitor visa Subclass UL 679 valid to 24 Apr 2014.8 Apr 2014 Granted a Bridging visa A WA 010 valid to 21 Sep 2015.12 Nov 2015 Granted a Bridging visa E WE 050 valid to 10 Dec 2015.18 Dec 2015 Granted a Bridging visa E WE 050 valid to 5 Jan 2016.5 Jan 2016 Granted a Bridging visa E WE 050 valid to 12 Feb 2016.12 Feb 2016 Granted a Bridging visa E WE 050 valid to 15 Apr 2016.15 Apr 2016 Granted a Bridging visa E WE 050 valid to 13 July 2016.28 Jul 2016 Granted a Bridging visa E WE 050 valid to 28 Oct 2016.31 Oct 2016 Granted a Bridging visa E WE 050 valid to 25 Jan 2017.14 Feb 2017 Granted a Bridging visa E WE 050 valid to 16 May 2017.15 May 2017 Granted a Bridging visa E WE 050 valid to 16 Aug 2017.16 Aug 2017 Granted a Bridging visa E WE 050 valid to 14 Feb 2018.16 Feb 2018 Granted a Bridging visa E WE 050 valid to 14 Mar 2018.From 14 Mar 2018 to present day – no visa held.The Hearing In the hearing the Tribunal took the applicant through his migration history and briefly through his criminal history and confirmed that it was accurate. The criminal history of the applicant includes several driving offences including drink driving which attracted fines, disqualification and a bond from 15 April 2017 to 27 June 2017. The applicant was also convicted of “Deal with property of proceeds of crime “and convicted of recklessly deal with proceeds of crime” and sentenced to 18 months imprisonment suspended for a bond. It then took the applicant through the various subclauses of Subclass 050 – Bridging visa (General) cl 050.212(2) to (9) and cl 050.233 as below to determine whether they were satisfied by the applicant. The Tribunal asked why the applicant wanted to be granted a bridging visa. He explained that he wanted to leave “here” and go back to his family and show them he was not going to make the same mistakes and show his kids he would not make the same mistakes again. The Tribunal noted “The Psychological Report by [Ms H]” dated 25 March 2018 which concludes that the applicant has PTSD from a knife wound inflicted by the family of his wife and the death of his brother in Lebanon from a car accident. He also suffers from anxiety and depression. The report concluded that he was a low to moderate risk of recidivism. These reports are some three years out of date and were prepared for the applicant’s court appearance in NSW so they can be given limited weight. The Tribunal acknowledges the psychological effect the separation is having on the applicant’s wife and the children asking in the video for their Father to be returned home to them.