2206509 (Migration) - [2022] AATA 5192

2206509 (Migration) [2022] AATA 5192 (12 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2206509
MEMBER:Paul Windsor
DATE:12 May 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 12 May 2022 at 4:38 pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – intention to apply for a partner visa – immigration history – multiple periods of unlawful residence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 73, 195
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.221
CASES
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 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 2 May 2022. 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(2) and (3).
The decision to refuse to grant the visa was made on 3 May 2022 on the basis that the applicant did not meet the requirements in clause 050.211.
The applicant appeared before the Tribunal on 12 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Friend A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Fuqing and English languages.
The applicant was represented in relation to the review. Her representative attended the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the primary criteria at cl.050.212.
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 initially (in the application for the Bridging E visa) indicated she was seeking to meet cl 050.212(2). She subsequently (on 7 May 2012) advised that she was seeking to meet cl 050212(3)(b). The applicant does not claim to meet any of the other alternative criteria in cl…

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 2206509 (Migration)

Details

AGLC: 2206509 (Migration) [2022] AATA 5192
Case: [2022] AATA 5192
Decision Date: 12 May 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Bridging E (Class WE) visa, Subclass 050, made by an applicant with a history of unlawful residence in Australia. The primary dispute concerned whether the applicant met the criteria for the visa, specifically the requirement to be making acceptable arrangements to depart Australia.

The legal issues before the Tribunal were whether the applicant satisfied clause 050.212 of the Migration Regulations 1994, which outlines the grounds for granting a Bridging E visa, and clause 050.221, which requires the applicant to continue to satisfy the primary criteria at the time of the decision. The Tribunal also considered the meaning of "acceptable arrangements to depart Australia" and whether the applicant's stated intentions were genuine, drawing guidance from departmental guidelines and relevant case law.

The Tribunal found that the applicant did not meet the criteria for the Bridging E visa. Initially, the applicant claimed to be making arrangements to depart Australia, supported by a letter from a friend indicating assistance with departure. However, a subsequent statutory declaration from the same friend stated the applicant was his de facto partner and he intended to sponsor her for a Partner visa in Australia. The Tribunal concluded this indicated a clear intention not to depart Australia. Furthermore, the applicant had a significant history of unlawful residence, including multiple periods where she failed to depart Australia after being granted bridging visas on departure grounds. The Tribunal also noted the applicant did not meet the criteria for a Subclass 051 (Bridging (Protection Visa Applicant)) visa.

The Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the primary criteria at cl.050.212.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 initially (in the application for the Bridging E visa) indicated she was seeking to meet cl 050.212(2). She subsequently (on 7 May 2012) advised that she was seeking to meet cl 050212(3)(b). The applicant does not claim to meet any of the other alternative criteria in cl 050.212. For the reasons below, the Tribunal finds 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 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]). In her application the applicant indicated that she was seeking the visa because she was making arrangements to depart Australia. She indicated that, due to the complex and strict pre-departure arrangements for China, it will take some time to comply with the requirements and wished to be released from detention to make the proper arrangements on her own. She indicated that she had discussed the matter with her family in China and her family friend in Australia, [Friend A], and would comply with all visa conditions if granted the visa. Included with the application was a support letter dated 2 May 2022, signed by [Friend A]. In his letter, [Friend A] indicates he would like to provide the applicant with all necessary assistance so she can be released from detention. He indicated his address is [Address 1] while the applicant will reside at [Address 2]. He comments that the applicant has learned a good lesson after being taken into immigration detention and promises she won’t do anything similar in the future. He states he hopes she can be released soon so she can leave Australia for China voluntarily. On 7 May 2022, however, a statutory declaration by [Friend A] of the same date was submitted indicating that the applicant is his de facto partner and he would like to sponsor her for a Partner (Temporary) UK-820/Partner (Residence) BS-801 visa in Australia, and that she will make the application within a period allowed by the Minister (Tribunal). Considering the above, the Tribunal finds it is clear that the applicant does not intend to make arrangements to depart Australia if she is granted the Bridging E visa. As discussed with the applicant at the hearing, the Tribunal also notes that she has a very poor immigration history, having been an unlawful non-citizen on five occasions (once for over six years and once for over two years), since she arrived in Australia in November 2010. Furthermore, on the two most recent occasions she was granted Bridging E visas (in August and October 2021), both on departure grounds, she did not depart Australia and again became unlawful.

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.Paul WindsorMember

Ratio Decidendi

Legal Principle Established

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