2300444 (Migration) [2023] AATA 295 (24 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2300444
MEMBER:Katie Malyon
DATE:24 January 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Statement made on 24 January 2023 at 12:52 pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicant convicted of several offences and imprisoned – acceptable arrangements to depart Australia – plans to apply for a Partner visa – expired Lebanese passport – valid application for a substantive visa – strong compassionate circumstances – relationship with an Australian resident and family – assistance to Australian children – imminent marriage – request for Ministerial Intervention – decision under review affirmed
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, Lebanese national [named], applied for the visa on 10 January 2023. At that time Class WE contained 2 subclasses: Subclass 050 (General); and, Subclass 051 (Protection Visa Applicant). In the present case, [the applicant] is seeking to satisfy the criteria for grant of a Subclass 050 (General) visa (BVE). The criteria for a BVE are set out in Part 050 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevant to this matter, the primary criteria include cl 050.212 of Schedule 2 to the Regulations.
Background
For context, the Tribunal has set out below a brief summary of [the applicant’s] immigration and criminal history in Australia following cancellation of his Student visa.
[The applicant] was born in Lebanon on in [specified year]. He arrived in Australia [in] June 2013 as the holder of a Subclass 573 Student visa to undertake study at [a named university].
Just over 7 months later, [in] February 2014, [the applicant] was remanded into criminal custody and charged with [number] counts of having sexual intercourse with a person between the ages [specified] after he married [an underage] girl in an Islamic ceremony at her father’s home. [In] March 2014, [the applicant’s] Student visa was cancelled under s 116(1)(e) of the Act as a consequence of his multiple criminal charges. He was detained as an unlawful non-citizen (UNC) pursuant to s 189 of the Act and transported to the…
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.
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AGLC
2300444 (Migration) [2023] AATA 295
Case
[2023] AATA 295
Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal considered an application for a Bridging E (Class WE) visa made by an applicant who had been convicted of offences and imprisoned. The applicant sought the visa to remain in Australia while planning to apply for a Partner visa, citing his expired Lebanese passport and concerns about potential harm to himself and his family if he were to obtain new travel documents from the Lebanese government. The Tribunal was required to determine whether the applicant met the criteria for a Bridging E visa under Schedule 2 of the Regulations, specifically whether he was making acceptable arrangements to depart Australia or met any of the alternative grounds specified in the regulations.
The Tribunal examined the applicant's submissions regarding his inability to obtain a new Lebanese passport due to the requirement to disclose his criminal record, which he argued would place him and his family at risk given the situation in Lebanon. The applicant stated his intention to apply for a Partner visa upon release from detention rather than depart Australia. However, the Tribunal found that the applicant was not currently making any arrangements to depart Australia and did not meet any of the other specified criteria for a Bridging E visa, including those relating to outstanding requests to the Minister, criminal detention, compelling need to work, or judicial review of a visa refusal. The Tribunal also considered whether the applicant qualified for a Subclass 051 Bridging (Protection Visa Applicant) visa but concluded he did not meet the definition of an "eligible non-citizen" for that visa class.
Ultimately, the Tribunal affirmed the delegate's decision to refuse the Bridging E visa application, finding that the applicant did not satisfy the necessary criteria. Despite this outcome, the Tribunal commented on the appropriateness of referring the case to the Minister for intervention under section 195A of the Act, noting the strong compassionate circumstances presented by the applicant's genuine relationship with an Australian resident and her children, and their imminent marriage. While the Tribunal acknowledged it was inappropriate to formally refer the matter due to an existing application under section 195A, it made observations regarding the evident affection between the applicant and the children and suggested further documentation that could support the ministerial application.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
For the following reasons, the Tribunal has concluded that the decision under review must be affirmed. The Tribunal has also briefly commented on the appropriateness of referral of this decision to the Minister. CONSIDERATION OF Claims and evidence The issue in this case is whether, at the time of application on 10 January 2023, [the applicant] meets one of the multiple alternative grounds for seeking a BVE set out in cl 050.212(2) - cl 050.212(9) of Schedule 2 to the Regulations and, if so, whether he continues to meet that criterion at the time of this decision as required by cl 050.221 of Schedule 2 to the Regulations. The Tribunal has considered each of the requirements in cl 050.212 below and, where relevant, has referred to evidence provided at the hearing as well as documentation provided prior to the hearing. Acceptable arrangements to depart Australia – cl 050.212(2) Subclause 050.212(2) is met if the Minister (that is, the Department or the Tribunal on review) is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. The term ‘acceptable arrangements’ is not defined in the Regulations. The Department’s policy 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 are genuine (Lin at [30]). In his pre-hearing submissions [the applicant] addresses cl 050.212(2) of Schedule 2 of the Regulations. He refers to comments made in the delegate’s decision that he was unable to apply for travel documents due to the requirement of the Lebanese Government that he provide his criminal record. [The applicant] submits that there is a potential risk of harm to himself and his family if he was to share his criminal record with the Lebanese Government as the charge ‘persistent sexual abuse of a child’ would be taken seriously without considering the consequences. He also refers to the current humanitarian crisis and corruption in Lebanon which would further exacerbate the risks to himself and his family. Furthermore, [the applicant] confirms it is his intention not to depart Australia with his family once he obtains a travel document but, rather, he will apply for a Partner visa once released from detention. He adds he would only consider returning to Lebanon as a last resort as doing so would put himself and his 2 step-children ([Ms A’s] children) at risk. At the hearing on 19 January 2023, the Tribunal asked [the applicant] whether he had made arrangements to depart Australia. He confirmed that his Lebanese passport has expired and that he has not yet applied for a new one because, in doing so, he would need to give his address and, as a consequence, the Lebanese Government would become aware of that he is currently detained at the [named detention centre]. [The applicant] said that, if he is released from detention, he will apply for a new Lebanese passport giving his address as that of [Ms A] and then would be able to apply for a ticket to leave Australia. He also told the Tribunal that, if his BVE is refused, he is aware he will need to consider leaving Australia unless the Minister grants him the opportunity to lodge a Partner visa application onshore. [The applicant] confirmed he is not currently making any arrangements to depart Australia pending the outcome of his s 195A application to the Minister.
Decision
Reasons for decision
During the hearing, [the applicant] confirmed that he is making no claims under cl 050.212(6B), (7), (8) or (9) of Schedule 2 to the Regulations. Based on available evidence, none of these causes apply to [the applicant]. Accordingly, the Tribunal is satisfied that [the applicant] does not meet cl 050.212(6B), (7), (8) or (9) of Schedule 2 to the Regulations. Conclusion For the cumulative reasons set out above, the Tribunal is not satisfied that [the applicant] meets any of the time of application alternative criteria in cl 050.212(2) – (9) of Schedule 2 to the Regulations. Accordingly, he does not satisfy criteria for the grant of a Subclass 050 Bridging (General) visa. [The applicant’s] application for a Bridging E (Class WE) visa under s 73 of the Act is also an application for a Subclass 051 Bridging (Protection Visa Applicant) visa. However, for reasons discussed at the hearing, the Tribunal finds that [the applicant] is not an ‘eligible non-citizen’ referred to in reg 2.20(7) - reg 2.20(11) of the Regulations as set out in cl 051.211 of Schedule 2 to the Regulations. By way of summary, these provisions refer to persons who have been refused immigration clearance or who have bypassed immigration clearance having arrived by sea. As confirmed by [the applicant] at the hearing, he does not meet these requirements for the grant of a Subclass 051 Bridging (Protection Visa Applicant) visa.Is this an appropriate case to refer to the Minister? Having found that the delegate’s decision must be affirmed because [the applicant] cannot meet cl 050.212 of Schedule 2 to the Regulations, the next issue for the Tribunal to consider is whether this is an appropriate case to refer to the Minister. As noted above, the delegate’s decision confirms that [the applicant] currently has pending an application to the Minister pursuant to s 195A of the Act. The Minister has issued guidelines explaining the circumstances in which s/he may wish to consider exercising the public interest powers under the s 351, s 417 and s 501J of the Act (the Guidelines)[3] . The Guidelines state that the Minister will give possible consideration to exercising the public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances. The Minister has also indicated cases which are inappropriate for consideration. No guidelines have been issued by the Minister in relation the exercise of the powers under s 195A of the Act. [3] >Relevant to the circumstances of this case, the Tribunal notes that the Guidelines confirm it is inappropriate to bring a matter to the Minister’s attention in circumstances where the person has an ongoing Ministerial intervention request under any of the powers covered by the Guidelines. Although the Guidelines do not refer to the Minister’s powers to grant a detainee a visa under s 195A of the Act, the Tribunal nonetheless has considered circumstances outlined in the Guidelines for possible referral to the Minister. Consistent with the Guidelines, the circumstances which may be unique or exceptional in this case are:·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or permanent resident. It is evident to the Tribunal that [the applicant] has a genuine support for his s 195A application to the Minister not only from [Ms A], her [age]-year-old daughter and [age]-year-old son but also [the applicant’s] extended family and friends in Sydney. During the course of the hearing and as confirmed by the photographic evidence provided, [the applicant] has a genuinely warm and affectionate relationship with [Ms A] and both of her children. Despite the fact that the children sat at the rear of the hearing room for the first half of the hearing, they spontaneously joined [the applicant] and [Ms A] at the hearing table when [the applicant] and [Ms A] were asked about how they met, how their relationship grew, the impact of [Ms A’s] husband’s death in 2018 on her family and [Ms A’s] description of [the applicant] now proactively, on a daily basis, filling the role of a father-figure for her 2 young children. The Tribunal notes that [Ms A’s] [age]-year-old son jumped up onto [the applicant’s] lap and remained seated there, cuddling [the applicant] for the remaining hour or so of the hearing. Her [age]-year-old daughter came to sit beside [Ms A] and, when the Tribunal indicated it had no discretion because it was evident - based on evidence provided - that it must affirm the delegate’s decision to refuse [the applicant’s] BVE visa application, she quietly shed copious tears in support of [the applicant] and her mother, alternating between looking at her mother, [the applicant], the Member, and her hands which were clasped on her lap. The Tribunal observed during the hearing that, although the Guidelines refer to considerations by the Tribunal contemplating referral of a matter to the Minister under s 351, s 417 or s 501J of the Act and, as such, it would be inappropriate to refer this matter to the Minister since [the applicant] has applied to the Minister under s 195A of the Act, it would nonetheless make some observations in its decision about the clearly evident love, affection and respect that [Ms A’s] children (and [Ms A]) have for [the applicant]. It referred [the applicant] and [Ms A] to the NSW Law Society’s website for contact details of accredited immigration law specialists, many of whom have considerable experience with Ministerials and who may be able to assist the couple further in this regard. It also discussed the nature of additional documentation which may be lodged in support of their s 195A application to the Minister including evidence of [Ms A’s] husband’s Death Certificate, the Birth Certificates of her children as well as signed and dated letters from family and friends supported by evidence of their residence status in Australia including, if relevant, evidence of Australian citizenship. Finally, the Tribunal recommended lodging a copy of the couple’s Marriage Certificate with the Department for referral to the Minister.In passing, the Tribunal notes it expressed sympathy (as did the differently constituted Tribunal[4] in its reported decision of 3 October 2022 referred to above at para [9]) for the situation that [the applicant] and his family, especially, [Ms A] and her 2 young children find themselves. It also expressed its best wishes for their wedding to be celebrated on [a day in] January 2023. The Tribunal acknowledged [the applicant’s] expressed contrition for the events in early 2014 which led to him being convicted of persistent sexual abuse of a child, his 7½ year jail sentence and his current detention in the [named detention centre]. It complimented [the applicant] for his demonstrated commitment to on-going personal and professional development as evidenced by his completion of the qualifications referred to above at para [13], in particular, [Agency 1’s] [parenting] course completed 16 December 2022. [4] Ibid n 1 at para [19] decisionThe Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.Katie MalyonMember
Ratio Decidendi
Legal Principle Established
During the hearing, [the applicant] confirmed that he is making no claims under cl 050.212(6A) of Schedule 2 to the Regulations. Given the Tribunal’s findings above at para [51], there is no evidence [the applicant] holds a holds a BVE granted on the basis that he met requirements in cl 050.212(6AA) and, as such, cl 050.212(6A) is not applicable to the circumstances of his case. Consideration of alternative criteria in cl 050.212(6B), (7), (8) and (9) By way of summary of these remaining 4 criteria: cl 050.212(6B) is met if the applicant has an outstanding request to the Minister under s 345, 351 or 417 of the Act made before 1 July 2009; cl 050.212(7) applies to persons who are in criminal detention; cl 050.212(8) applies to a holder of BVE visa who has condition 8101 (No work) attached to their visa and who the Minister is satisfied has a compelling need to work; and, cl 050.212(9) is met if a decision to refuse the applicant a Spouse or Partner (Migrant) Class BC visa or an Interdependency (Migrant) Class BI visa is the subject of judicial review and the judicial review proceedings have not been completed. During the hearing, [the applicant] confirmed that he is making no claims under cl 050.212(6B), (7), (8) or (9) of Schedule 2 to the Regulations. Based on available evidence, none of these causes apply to [the applicant]. Accordingly, the Tribunal is satisfied that [the applicant] does not meet cl 050.212(6B), (7), (8) or (9) of Schedule 2 to the Regulations. Conclusion For the cumulative reasons set out above, the Tribunal is not satisfied that [the applicant] meets any of the time of application alternative criteria in cl 050.212(2) – (9) of Schedule 2 to the Regulations. Accordingly, he does not satisfy criteria for the grant of a Subclass 050 Bridging (General) visa. [The applicant’s] application for a Bridging E (Class WE) visa under s 73 of the Act is also an application for a Subclass 051 Bridging (Protection Visa Applicant) visa. However, for reasons discussed at the hearing, the Tribunal finds that [the applicant] is not an ‘eligible non-citizen’ referred to in reg 2.20(7) - reg 2.20(11) of the Regulations as set out in cl 051.211 of Schedule 2 to the Regulations. By way of summary, these provisions refer to persons who have been refused immigration clearance or who have bypassed immigration clearance having arrived by sea. As confirmed by [the applicant] at the hearing, he does not meet these requirements for the grant of a Subclass 051 Bridging (Protection Visa Applicant) visa.Is this an appropriate case to refer to the Minister? Having found that the delegate’s decision must be affirmed because [the applicant] cannot meet cl 050.212 of Schedule 2 to the Regulations, the next issue for the Tribunal to consider is whether this is an appropriate case to refer to the Minister. As noted above, the delegate’s decision confirms that [the applicant] currently has pending an application to the Minister pursuant to s 195A of the Act.