2117724 (Migration) - [2021] AATA 5588

2117724 (Migration) [2021] AATA 5588 (7 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2117724
MEMBER:Roslyn Smidt
DATE:7 December 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 7 December 2021 at 7 December 2021
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – passport expired – no valid ticket, booking or reservation to leave Australia – travel restrictions – COVID-19 pandemic – security situation in Nigeria – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 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 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).
The applicant applied for the visa on 19 November 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 050.212.
The decision to refuse to grant the visa was made on 24 November 2021 on the basis that the delegate was not satisfied that the applicant was making acceptable arrangements to leave Australia.: The applicant appeared before the Tribunal on 6 December 2021 to give evidence and present arguments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant’s migration history
The applicant arrived in Australia on a visitor visa [in] November 2016 which was valid until [date] February 2017. A no further stay condition was attached to that visa.
[In] February 2017 the applicant applied for a protection visa on the grounds of his sexual orientation. As a result he was granted a Bridging Visa A (BVA) on 1 March 2017.
On 28 August 2019 the applicant’s BVA was cancelled following his conviction for several criminal offences and he became an unlawful non-citizen for the first time.
On 6 September 2019 the applicant sought merits review of the decision to cancel his BVA. On 6 March 2020 a differently constituted Tribunal found that it did not have jurisdiction to consider this application as the prescribed timeframe for lodgement had not been met.
On 7 September 2019 the applicant applied for…

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 2117724 (Migration)

Details

AGLC: 2117724 (Migration) [2021] AATA 5588
Case: [2021] AATA 5588
Decision Date: 7 December 2021

CaseChat Overview and Summary

The applicant, who had a history of visa cancellations and criminal convictions, sought review of a decision to refuse his application for a Bridging E (Class WE) visa. The applicant had previously held various bridging visas since his initial arrival in Australia in 2016. His most recent Bridging E visa was granted on the basis that he was making arrangements to depart Australia, but this visa ultimately ceased, and he subsequently applied for another Bridging E visa, which was refused. The applicant contended that he was unable to depart Australia due to circumstances beyond his control, including financial hardship, travel restrictions imposed by the COVID-19 pandemic, and concerns for his safety in Nigeria.

The primary legal issue before the Tribunal was whether the applicant had made, or was the subject of, acceptable arrangements to depart Australia, as required for the grant of a Bridging E visa. The Tribunal was required to consider the criteria outlined in the relevant policy guidelines, which included factors such as holding a valid ticket or booking for travel, the ability to obtain a valid travel document, and active engagement in departure arrangements. The Tribunal also had to assess the applicant's stated intention to depart Australia against his expressed desire to remain in the country and his lack of concrete departure plans.

The Tribunal reasoned that the applicant had not demonstrated that he was making acceptable arrangements to depart Australia. Despite stating he was making arrangements, the applicant had no valid ticket or booking, and his passport had expired. He also expressed a clear intention not to leave Australia, citing concerns about his safety in Nigeria and financial hardship, which were not considered sufficient to overcome the requirement for demonstrable departure arrangements. The Tribunal noted that the applicant's claims about his inability to return to Nigeria were the same as those made in his protection visa application, which had been refused. Furthermore, the applicant had no money to purchase a ticket and explicitly stated he did not want to leave.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa. The Tribunal also noted that the applicant did not meet the requirements for a Bridging (Protection Visa Applicant) visa (Subclass 051).

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BackgroundThe applicant’s migration history The applicant arrived in Australia on a visitor visa [in] November 2016 which was valid until [date] February 2017. A no further stay condition was attached to that visa. [In] February 2017 the applicant applied for a protection visa on the grounds of his sexual orientation. As a result he was granted a Bridging Visa A (BVA) on 1 March 2017. On 28 August 2019 the applicant’s BVA was cancelled following his conviction for several criminal offences and he became an unlawful non-citizen for the first time. On 6 September 2019 the applicant sought merits review of the decision to cancel his BVA. On 6 March 2020 a differently constituted Tribunal found that it did not have jurisdiction to consider this application as the prescribed timeframe for lodgement had not been met. On 7 September 2019 the applicant applied for a Bridging Visa E. He was granted a BVE in association with his PV application on 7 September 2019. On 30 September 2019 the applicant’s PV application was refused by a delegate of the Minister. He sought review of that decision on 30 October 2019. [In] 2020 the applicant’s passport expired. On 6 March 2020 a differently constituted Tribunal found that it did not have jurisdiction to consider the application for review of the cancellation of the applicant’s BVA as the prescribed timeframe for lodgement had not been met. On 12 March 2020 a differently constituted Tribunal found that it did not have jurisdiction to consider this application as the prescribed timeframe for lodgement had not been met. On 16 April 2020 the applicant’s BVE ceased and he became an unlawful non-citizen for a second time.. On 14 May 2021 he was granted a BVE on the basis that he was making arrangements to depart Australia. Between then and 18 January 2021 he was granted a further four BVEs. The final visa was valid until 12 February 2021. On 8 March 2021 the applicant applied for a BVE on the basis that he was making arrangements to depart Australia. In April 2021 the applicant was taken into custody. On 9 August 2021 the applicant was granted a BVE on criminal detention grounds. On 13 October 2021 the applicant was released from criminal detention and detained at [an] Immigration Detention Centre where he remains. On 16 November 2021 the applicant lodged a BVE application which was deemed invalid due to lodgement issues. On 19 November 2021 the applicant lodged a BVE application. On 24 November 2021 the applicant’s BVE application was refused as the delegate found that he had not made any arrangements to leave the country and had no intention of leaving. The applicant’s criminal history On 7 January 2019 the applicant was charged with domestic violence related offences. He was charged with further offences on 28 May 2019 [In] August 2019 the applicant was convicted of several offences and sentenced to a two -year conditional release order.

Evidence

Evidence Before The Court

In terms of relevant factors to be taken into account whether an applicant is making, or is the subject of, acceptable arrangements to depart Australia, PAM3 suggests they include whether:·The applicant has a valid ticket for travel and a booking or reservation to leave Australia.·The applicant could obtain a ticket for travel and will make a booking or reservation to leave within a reasonable period.·The applicant also holds a valid travel document or could obtain a valid travel document within a reasonable period (possibly through the assistance of IOM).·The applicant is actively engaging in a Status Resolution service (including assisted voluntary return (AVR) arrangements).·The applicant is a minor whose parent/guardian is making, or has made, departure arrangements on the minor's behalf.·The applicant is the subject of departure arrangements in circumstances where they have a medical condition that limits their capacity to travel (for example, physical or mental health considerations) but otherwise would leave Australia if they were physically able to do so.·The Department is making arrangements on the applicant's behalf to facilitate the applicant's departure (for example, obtaining a travel document on behalf of the applicant).CONSIDERATION OF Claims and evidenceBridging Visa application In his application the applicant stated that he did not hold a substantive visa and did not have any merit or judicial applications pending in Australia. He said that he was making arrangements to leave Australia, but the method of departure and his intended departure were unknown due to the COVID19 pandemic He claimed that he was unable to return to Nigeria because he feared for his life and well-being because of violence and crime. In addition circumstances beyond his control such as financial hardship and travel restrictions surrounding the Covid19 pandemic meant he would not leave at the current time. He said that he needed a visa so he could remain in Australia lawfully and that he would abide by any conditions which attached to that visa. According to the notes of his interviews with a Department office on 13 and 14 October 2021 the applicant said that he had savings of $100 and car with an estimated value of $2,000. He said that he would need to work to support himself if he was released from detention. He said that his partner worked and may be able to support him. When asked if there where any reasons he could not return to Nigeria he said that he could not return for reasons stated in his protection visa application. He also said that he had no money to pay for an ticket to depart and that he did not want to leave.The delegate’s decision The delegate noted that while the applicant had stated in his application that he was making arrangements to leave Australia no such arrangements had been made. He observed that the applicant had made it clear in his application that he did not intend to depart Australia because of concerns about violence, insecurity, political unrest and the Covid pandemic in Nigeria and that he required a visa so he could remain in Australia lawfully. The delegate also noted that the applicant had stated during interviews on 13 October and 14 October that he wished to remain in Australia.

Decision

Reasons for decision

The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant is not a relevant eligible non-citizen as set out in cl 051.211 of Schedule 2 to the Regulations and therefore does not meet the requirements for the grant of that visa.decision The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.Roslyn SmidtMember

Ratio Decidendi

Legal Principle Established

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