2304035 (Migration)

[2023] AATA 1928

2304035 (Migration) [2023] AATA 1928 (28 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2304035

MEMBER:Tania Flood

DATE:28 March 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 28 March 2023 at 9:52am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – convicted of an offence – applicant pursuing court action – arrangements to depart Australia – no current intention of departing – valid application for a substantive – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 73, 189, 269, 359AA, 501K
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 051.211

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).

2. The applicant applied for the visa on 16 March 2023. 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)-(9).

3. The decision to refuse to grant the visa was made on 20 March 2023 on the basis that there are no grounds for seeking the visa as the applicant does not meet any of the criteria in cl.050.212(2)-(9). 

4. The applicant appeared before the Tribunal on 27 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s stepfather by telephone.  The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

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

   Migration History

6. According to Departmental records the applicant last arrived in Australia [in] May 2017 as the holder of a [Student] visa. On 14 January 2019 his [Student] visa was cancelled and he became an unlawful non-citizen.

7. On 8 March 2019 he lodged an application for a Protection visa (subclass XA-866).  On 24 June 2021 the application for an XA-866 visa was refused. The applicant was granted a series of Bridging Visa E’s (BVE).

8. The applicant applied to the AAT for merits review of the XA-866 visa refusal decision. On 23 November 2022 a differently constituted Tribunal found it had no jurisdiction to review the matter.

9. [In] January 2023 the applicant was remanded into criminal custody and [in] February 2023 the applicant was granted a BVE on Criminal Detention Grounds. 

10. [In] March 2023 he was convicted of the offence “Stalk/Intimidate Intend Fear Physical Etc Harm (Domestic) – Ts” and sentenced to a Community Corrections Order for a period of three years commencing on [a day in] March 2023 and expiring [in] March 2026.

11. The applicant’s BVE on Criminal Detention Grounds ceased on [a day in] March 2023 upon release from criminal detention and he became an unlawful non-citizen.  [That day] he was located by Australian Border Force officers and detained pursuant to s189 of the Act.  He was subsequently transferred to immigration detention.

12. On 16 March 2023 he lodged a valid application for a BVE while in immigration detention.

13. According to Departmental records the applicant has no ongoing immigration matters at the time of this BVE application.

    Oral evidence to the Tribunal

14. The applicant appeared before the Tribunal on 27 March 2023 and during the hearing he testified orally that he is not currently making any arrangements to depart Australia as he is pursuing court action over an incident in which he was allegedly “scammed” of several thousand dollars in connection with his studies in Australia.   He said that he does not understand why his student visa was cancelled and that he has no intention of departing Australia until such time as he gets retribution for this injustice. The applicant advised the Tribunal that he has not made an application for a substantive visa in recent times but he is considering making an application for asylum if that is possible.  The applicant stated that he is not in a relationship with any person at this time.  The applicant’s stepfather repeated the applicant’s testimony in respect of his intention to pursue a legal solution in respect of his loss of money.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in this case is whether the applicant satisfies any of the criteria in cl 050.212(2)-(9).   

    The grounds for seeking the visa - cl 050.212

16. 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.

17. At the outset of the hearing and at various times throughout the hearing the Tribunal explained to the applicant that it needs to be established that there are relevant grounds for the grant of the visa.  By and large the applicant appeared not to understand this and repeatedly provided testimony in respect of the political conditions in Aceh, Indonesia  which prevent him from safely returning and about the injustice he allegedly suffered at the hands of an unscrupulous agent acting on his behalf in respect of his student visa.   The applicant did not articulate any relevant grounds for seeking the visa although he did state that he might be prepared to depart Australia if and when he is able to conclude the abovementioned legal action.  The Tribunal has therefore first considered whether the applicant satisfies cl 050.212(2).

    Acceptable arrangements to depart Australia (cl 050.212(2))

18. Subclause 050.212(2) deals with the ground of making acceptable arrangements to depart Australia and 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]).

19. The applicant has alluded to a possibility of him departing Australia at a point in the future.  However, there is no evidence before the Tribunal to support that he is currently making or is the subject of any acceptable arrangements to depart Australia at this time.  Indeed, he indicated quite strongly to the Tribunal that he has no current intention of departing Australia. 

20. Based on the available evidence, 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).

21. The Tribunal has further considered whether the applicant meets cl 050.212(3) or (3A).

    Substantive visa application

22. 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.

23. ‘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.

24. As noted above, the applicant stated during the hearing that he was considering making an application for asylum on political grounds.  The Tribunal discussed with him the fact that he previously made an application for a protection visa which was refused by the Department and later affirmed by the Tribunal.  Further, the Tribunal indicated that based on his testimony the option of applying for a partner visa is also not open to him even if he could meet the timeframe for doing so.

25. The applicant is unable to make a further application for a protection visa onshore as he has previously applied for a protection visa and been refused it.  He has not indicated any other substantive visa type applicable in his circumstances and there is no information before the Tribunal to indicate that he has or has attempted to lodge a substantive visa application of any kind to date. 

26. Given the above, the Tribunal finds the applicant does not meet cl 050.212(3).

    Judicial review

27. Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.

28. The applicant referred to court proceedings in respect of his bid to reclaim lost monies but he has not claimed to have applied for judicial review of a decision to refuse him a substantive visa and there is no information before the Tribunal to indicate that an application for judicial review of a decision to refuse to grant him a substantive visa has been made, either by him or the Minister.

29. Given the above, the Tribunal finds the applicant does not meet cl 050.212(3A).

30. The applicant does not claim, and nor is there any basis to conclude on the available information, that any of the other alternative criteria in cl 050.212 apply in his case.

31. The Tribunal has concluded that the applicant does not satisfy the criterion at cl 050.212.

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

33. 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

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

    Tania Flood
    Member