2301366 (Migration) - [2023] AATA 321

2301366 (Migration) [2023] AATA 321 (14 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2301366

MEMBER:Member Nathan Goetz
DATE:14 February 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 14 February 2023 at 9:40am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – arrangements to depart Australia – previous applications for protection – family unit resident in Australia – applicant convicted of family violence offences – intention to depart Australia – breaches of Domestic Violence Order – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 74, 116, 360, 367
Migration Regulations 1994, Schedule 2, cls 050.212, 221, 051.211; rr 2.20, 4.27
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 under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a Bridging E (Class WE) visa.
The applicant identifies as a male citizen of India presently located in Australia.
On 3 February 2023 the applicant applied for the bridging visa. At that time Class WE contained two subclasses: Subclasses 050 and 051. The criteria for the two subclasses are contained in Parts 050 and 051 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The applicant was interviewed by the delegate on 3 February 2023. On 3 February 2023 the delegate refused to grant the applicant the bridging visa on the basis that the applicant did not satisfy either cl 050.212 or cl 051.211 of Schedule 2 to the Regulations.
On 3 February 2023 the applicant applied to the Tribunal for review of the decision.
On 7 February 2023 the Tribunal wrote to the applicant under s 360(1) of the Act and invited him to appear at a one-hour Tribunal hearing commencing at 12 noon on 10 February 2023 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. That day, the Tribunal also wrote to the applicant and asked him to provide a written submission identifying how he claimed to meet the criteria for the grant of the visa.
CONSIDERATION OF REQUEST TO POSTPONE HEARING
On 7 February 2023 the applicant wrote the following to the Tribunal:
“Please i need help extend my hearing please.”
The Tribunal was initially unsure whether the applicant was asking the Tribunal to extend the allocated hearing time or asking for the Tribunal hearing to be postponed to a later date. The Tribunal sought clarification from the applicant who advised that he had been ‘in quarantine’…

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 2301366 (Migration)

Details

AGLC: 2301366 (Migration) [2023] AATA 321
Case: [2023] AATA 321
Decision Date: 14 February 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant the applicant, a male citizen of India, a Bridging E (Class WE) visa. The applicant, who was an unlawful non-citizen in Australia, sought the visa on the basis that he was making arrangements to depart Australia. He claimed to have booked a flight to India for 5 March 2023, with a subsequent intention to travel to Dubai. The applicant stated his desire to see his children before departing Australia, noting that his wife and children held protection visas and were unable to leave the country. He also indicated a fear of harm in India and expressed a wish to be in a position to apply for a visa to return to Australia to see his family.

The legal issues before the court were whether the applicant satisfied the criteria for the grant of a Bridging E (Class WE) visa, specifically whether he was an eligible non-citizen as defined by the regulations and whether he met the requirements for the grant of that visa. The court also considered the applicant's requests for a postponement of his Tribunal hearing, which had been refused by the Tribunal.

The court affirmed the Tribunal's decision not to grant the visa. The Tribunal found that the applicant had not provided sufficient evidence to satisfy the criteria for the visa. While the applicant claimed to be departing Australia, his stated intention to travel to Dubai without a confirmed visa or flight, coupled with his fear of returning to India, raised questions about the genuineness of his departure arrangements. Furthermore, the Tribunal determined that the applicant had adequate time to prepare his visa and review applications and that his requests for postponement were not justified, particularly given the time constraints for reviewing decisions relating to bridging visas for applicants in immigration detention. The applicant was found not to be a relevant eligible non-citizen as required by the regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At the time of the visa application, the applicant must be an eligible non-citizen as provided in subregulation 2.20(7), (8), (9), (10) or (11). The applicant must continue to satisfy this criterion at the time of decision: cl 051.221.CONSIDERATION OF EVIDENCE The Tribunal considered all the evidence provided by the applicant in support of the bridging visa application, including what the applicant said at the Tribunal hearing. The Tribunal also considered the contents of the Department and Tribunal files.Identity and basis for the grant of the visa The applicant is a male citizen of India presently located in Australia. He was born in Punjab state/province, India, is currently [age] years of age and holds an Indian passport expiring [in] 2027. He is presently an unlawful non-citizen in Australia. The applicant identified his family unit as consisting of his wife [named] (born [DOB 1], a son named [name] (born [DOB 2]) aged [age] and a daughter named [name] (born [DOB 3]) aged [age]. He declared that he was applying for the bridging visa because he was ‘departing Australia.’ He claimed to be planning to depart Australia on 5 March 2023 by airplane. He provided ticket details as [Flight number] with a confirmation [number]. The visa form identified that the applicant attached travel tickets and a letter from a landlord. He detailed the following: “Currently I am in detention centre. Before leaving Australia, I want to see my children and spend some good time with them. My daughter is only [age] old, and I have never seen her in my life. Please understand a father’s feelings. I can’t hold back my tears when I miss my children. If I depart Australia from the detention centre, I will never see my children again in my life. This would be the last chance to see my children. My childhood friend will support me and provide all my expenses until 5 March 2023 when I depart Australia.” (Summarised from original). The applicant provided the contact details of the person identified as his friend. At the Tribunal hearing, the applicant confirmed that he was seeking the bridging visa on the basis that he was making arrangements to depart Australia. He told the Tribunal that the flight booked for 5 March 2023 was a flight to India from [Australia]. However, he said that he did not intend to stay in India because he feared harm there. This was consistent with the fact that the applicant previously applied for protection visas in Australia and had not returned to India since his last arrival in Australia. He told the Tribunal that once he was in India, he planned to travel to Dubai. He suggested that a company he worked for until 2018 would secure him a visa to go to that country after initially telling the Tribunal that he already had an existing right to enter and reside in Dubai. He confirmed that no flight had been booked for Dubai and that no visa currently existed for him to go to Dubai. He told the Tribunal that he was unsure how long he would remain in Dubai. He expressed a desire to leave Australia not directly from an immigration detention centre because he wanted to be in the best position to apply for a visa to return to Australia so he could see his family. He told the Tribunal that his wife and children had been granted protection visas and were unable to leave Australia to see him.

Decision

Reasons for decision

For these reasons, the applicant does not satisfy the criteria for the grant of 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.Nathan GoetzMember

Ratio Decidendi

Legal Principle Established

On 7 February 2023 the Tribunal wrote to the applicant under s 360(1) of the Act and invited him to appear at a one-hour Tribunal hearing commencing at 12 noon on 10 February 2023 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. That day, the Tribunal also wrote to the applicant and asked him to provide a written submission identifying how he claimed to meet the criteria for the grant of the visa.CONSIDERATION OF REQUEST TO POSTPONE HEARING On 7 February 2023 the applicant wrote the following to the Tribunal:“Please i need help extend my hearing please.” The Tribunal was initially unsure whether the applicant was asking the Tribunal to extend the allocated hearing time or asking for the Tribunal hearing to be postponed to a later date. The Tribunal sought clarification from the applicant who advised that he had been ‘in quarantine’ at the immigration detention centre, there was ‘network issues’ which mean that he could not contact any lawyer, and that he was now ‘back in the compound’ and needed time to look for a lawyer. The Tribunal considered the request but was not persuaded to grant a postponement. The Tribunal advised the applicant that his request had been refused. On 9 February 2023 the applicant again wrote to the Tribunal, pressing for a postponement of the Tribunal hearing which was scheduled the following day, citing a need to find representation, his deficiency in English, and a need to ‘collect more evidence from the community.’ The Tribunal considered the requested but was not persuaded to grant a postponement. The Tribunal advised the applicant that his request had been refused. The Tribunal determined that it was not appropriate to grant the postponement request for the following reasons. In reviews concerning a decision to refuse to grant a bridging visa which has resulted in an applicant being detained in an immigration detention centre, the Tribunal has 7 working days after the day on which the review application is received in which to make a decision (or longer with the applicant’s consent).[1] While the Tribunal acknowledges that a postponement request is necessarily indicative of the applicant’s agreement of an extension to the period during which the Tribunal must determine a review, the Tribunal is not persuaded that this is determinative about whether a postponement should be granted.[1] s 367; reg 4.27. The applicant applied for the bridging visa on 3 February 2023. He received a refusal decision that day. As demonstrated by his migration history, he has experience navigating visa applications, and bridging visa applications particularly. If the applicant desired obtaining legal representation connected with the review application, he should have arranged to do so at the time he applied to the Tribunal for review of the decision. Likewise, the applicant should have gathered all the ‘evidence from the community’ he referred to and submitted it when he applied for the bridging visa, or when he applied to the Tribunal for review of the decision. The Tribunal’s judgement is that the applicant had adequate time to prepare his bridging visa application and his review application.