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

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

BACKGROUND

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

CONSIDERATION OF Claims and evidence

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 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…

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 2213140 (Migration)

Details

AGLC: 2213140 (Migration) [2022] AATA 3767
Case: [2022] AATA 3767
Decision Date: 15 September 2022

CaseChat Overview and Summary

The applicant, an unlawful non-citizen, sought judicial review of a decision to affirm the refusal of a Bridging E (Class WE) visa. The applicant had remained in Australia unlawfully on multiple occasions and demonstrated extensive non-compliance with Australia's migration laws. The applicant did not wish to depart Australia and had made no arrangements to do so, nor did the applicant have a current visa application that had not been finally determined.

The primary legal issue before the Court was whether the delegate's decision to refuse the Bridging E visa was affected by jurisdictional error. This required the Court to consider whether the delegate had properly applied the relevant legislative criteria for granting such a visa, particularly in light of the applicant's history of non-compliance and lack of intention to depart Australia.

The Court affirmed the delegate's decision, finding no jurisdictional error. The delegate had correctly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The Court noted that a Bridging E visa is intended to facilitate departure or the resolution of a visa application, neither of which applied to the applicant's circumstances. The applicant's extensive non-compliance and expressed intention to remain in Australia unlawfully weighed heavily against the grant of a bridging visa.

Orders