2213140 (Migration)

[2022] AATA 3767

2213140 (Migration) [2022] AATA 3767 (15 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2213140

MEMBER:Linda Holub

DATE:15 September 2022

PLACE OF DECISION:  Sydney

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

Statement made on 15 September 2022 at 8:39am

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful non-citizen – remaining in Australia unlawfully on multiple occasions – extensive non-compliance with Australia’s migration laws – applicant does not wish to depart Australia and has not made any arrangements to do so – applicant does not have a current visa application in train that has not been finally determined – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 73, 269
Migration Regulations 1994, Schedule 2, cls 050.211, 050.221

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

1. 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,

2. The applicant applied for the visa on 30 August 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 050.221 and cl 051.211.

3. The decision to refuse to grant the visa was made on 5 September 2022 on the basis that the delegate found that the applicant did not meet the requirements of clauses cl 050.221 and 051.211. The applicant appeared before the Tribunal on 8 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

BACKGROUND

1. The applicant was born in [year] and is from India.

CONSIDERATION OF Claims and evidence

The grounds for seeking the visa - cl 050.212

1. 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.

2. In his Bridging visa application, the applicant wrote that he is going to apply for a review of a decision to cancel a visa. He wrote that he applied for a Protection visa in 2013-2014 by an agent in Sydney and that at that time he did not have much knowledge about the visa. He stated that he was misguided by the agent and that the agent had all his documents, but he did not receive any information. He stated that he was told by the agent that the visa has no expiry date and that if immigration required anything further the agent would let him know or he would submit the paperwork.

3. The applicant further stated that when he went to the immigration office in Sydney to return to India to see his sick mother and when he was there found out that the visa was cancelled. He wrote that he obtained a Bridging visa but unfortunately the Covid-19 pandemic started and there were no flights.

4. The applicant stated that his mother passed away and he has no family or friends in India and that he has resided in Australia since 2009. He stated that he needs the Bridging visa to fight for his Protection visa and when he leaves detention, he can get a proper immigration lawyer to fight for his case and give him the right guidance.

5. In this case, the applicant is seeking to meet cl 050.212(5) 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.

6. The applicant did not provide the Department with any additional written information in support of his application, nor did he make any written submissions to the Tribunal.

Oral evidence provided at hearing

1. The Department’s Decision Record outlines the applicant’s migration history. At hearing he confirmed that:

   ·he first arrived in Australia in May 2009 as the holder of a Student (class TU) (Subclass 572) visa and that he then he lodged an application for a Graduate (class VC) (Subclass 485) visa onshore that was refused in March 2012.

   ·in January 2013, he lodged an application for a Protection (class XA-PV) (Subclass 866) visa and that his application was refused in August 2013. After seeking review at the then Refugee Review Tribunal (RRT) the Department’s refusal decision was affirmed on 28 April 2014.

   ·he became an unlawful non-citizen and was taken into criminal remand and charged with a number of offences.

   ·since coming to Australia, he was unlawful from April 2012 until January 2013, between June 2014 until July 2019 and between 24 July 2019 until 24 June 2022.

2. The Tribunal explained to the applicant that the extensive and multiple periods of him being unlawful indicates that he is prepared to flout Australia’s immigration laws. He responded by saying that he did not break any laws. He stated that he had been misguided by a migration agent he previously used. The applicant stated that he did not know that he was unlawful. The Tribunal explained to him that even in situations where applicants use a migration agent, they have a responsibility to their visa status and to ensure they are lawful at all times. The Tribunal put it to him that being unlawful for such a long period of time reflects poorly on him. The applicant stated that he now has a criminal record because he was misguided by other people. He stated that it won’t happen again. He stated he understands that he now has to look after his future. He explained that his mother died a few years ago following some lung problems and he has nothing to go back to in India and if he returns there he would have to live on the streets. The applicant stated that he wishes to remain in Australia. He stated he has friends that will be able to support him. He stated he does not want to return to India because he has no one there and the way of living.

3. The applicant stated that he does not know the reason for the Department’s refusal of his application. The Tribunal explained to him that in his application form he had written that he was applying for the visa because his Protection visa has been cancelled and he was seeking a review of that decision. The Tribunal explained to him that at no time had a Protection visa been granted to him and therefore, based on the information available a Protection visa had not been cancelled. The Tribunal went on to explain that the records show that he applied for a Protection visa and that application had been refused. The applicant concurred that this is what had occurred.

4. The Tribunal also explained to him that the Department’s delegate considered him against all the possible grounds on which this visa can be granted, and he did not meet any of the requirements. The Tribunal explained to him that it would outline the various grounds on which this visa type can be granted and give him an opportunity to comment on its understanding in relation to his ability to meet the requirements.

Acceptable arrangements to depart Australia

1. 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]).

2. The Tribunal explained to the applicant that given his previous evidence that he wishes to remain in Australia, that he does not want to return to India that he has not made acceptable arrangements to depart Australia and that he does not he have any intention of doing so. The applicant reaffirmed his desire to remain in Australia and agreed that he had made no arrangements to depart nor does he have any intention in doing so.

3. The Tribunal accepts that the applicant does not wish to depart Australia and has not made any arrangements to do so, nor does he have any intention of doing so.

4. For these reasons, the Tribunal is not satisfied that at the time of application the applicant was making or was the subject of acceptable arrangements to depart Australia. Therefore, the applicant does not meet cl 050.212(2).

Substantive visa application

1. 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.

2. ‘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 an application being made: s 5(9) of the Act.

3. The applicant confirmed that he does not have any current applications for a substantive visa being considered by the Department. In relation to whether he would apply for one, the applicant stated that he wants to remain in Australia. He stated that he loves Australia and has learnt a lot of things. He stated that he is a good labourer and has developed good welding skills. He stated that he thinks he could work in construction and apply for a skilled visa. He works all day in prison to make himself busy and active. He has learnt his lesson.

4. The Tribunal explained to the applicant that it understands that he believes that he has learnt a lot, is a good labourer and that he wishes to remain in Australia. The Tribunal also explained that it is concerned about his extensive and multiple periods of unlawfulness and the lack of attention to his migration status. He does not have a good record. The Tribunal acknowledged that he made some general comments about a future visa application but based on his evidence he has not demonstrated that he has taken reasonable steps to make himself aware of his visa options. He responded that things happened in his past, but he has now learnt a lesson. He stated that given his age, he now understands that he only has a limited period to work. He stated that he has nothing in India, but that Australia has been in good to him. He stated that his only problem is that he had a bad agent. He is now representing himself.

5. The Tribunal is satisfied that the applicant does not have a current visa application in train that has not been finally determined. Given the applicant’s previous extensive and multiple periods of being unlawful and given he only made very generalised submissions regarding a possible future visa application the Tribunal is not satisfied that the applicant would apply for such a visa within a period specified for doing so.

6. Accordingly, the applicant does not meet cl 050.212(3).

Other provisions

1. The applicant has not made any submissions regarding any other reason for applying for a Bridging visa nor that he is able to meet the requirements of other provisions of Subclauses 050.212. The Tribunal has nevertheless considered whether the applicant’s circumstances are such that he meets the requirements of subclauses 050.212(3A), 050.212(4), 050.212(4AA), 050.212(4AAA), 050.212(5), 050.212(5A, 050.212(5B), 050.212(6, 050.212(6AA), 050.212(6B), 050.212(7), 050.212(8) or050.212(9). The Tribunal discussed these provisions with him, and the applicant concurred that none of the provisions are relevant in his circumstances.

2. There is nothing in the information and evidence before the Tribunal that the applicant can satisfy any the previsions of cl.050.212.

CONCLUSION

1. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

2. 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

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

Linda Holub
Member