2307689 (Migration) - [2023] AATA 2221

2307689 (Migration) [2023] AATA 2221 (9 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2307689
MEMBER:Rachel Da Costa
DATE:9 June 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 09 June 2023 at 11:32am
CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – an unlawful non-citizen – no ongoing immigration matters – eighth application for a BVE on departure grounds – medical condition is not preventing him from departing Australia – failed to comply with several conditions imposed on his BVEs – applicant does not wish to depart Australia and has not made any arrangements to do so – not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to him –decision under review affirmed
LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, r 2.20, cls 050.211, 050.212
CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
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 (BVE) under s 73 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 16 May 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) and, in particular, cl 050.212(2) which states that “[a]n applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.”
The decision to refuse to grant the visa was made on 1 June 2023 on the basis that the applicant did not meet the requirements in either clause 050.212 or 051.211 of Schedule 2 to the Regulations.
The applicant appeared before the Tribunal on 8 June 2023 to give evidence and present arguments. The hearing was conducted by videoconference using the Microsoft Teams (MS Teams) platform. The applicant speaks fluent English and did not require an interpreter. The applicant provided the Tribunal with a copy of the delegate’s decision prior to the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and migration history
In the Tribunal hearing, the applicant gave the following evidence about his personal circumstances. He is…

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 2307689 (Migration)

Details

AGLC: 2307689 (Migration) [2023] AATA 2221
Case: [2023] AATA 2221
Decision Date: 9 June 2023

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa by a citizen of Brazil who was an unlawful non-citizen at the time of the decision. The applicant had a complex migration history, including multiple previous Bridging E visas granted on departure grounds, and had failed to comply with conditions imposed on several of these visas, such as providing a departure ticket or departing Australia by a specified date. The applicant's last substantive visa, a Student visa, ceased in March 2016, and since then, he had made numerous applications for Bridging E visas, with his most recent application being his eighth on departure grounds since his Protection visa application was refused in February 2021. The applicant stated he had no ongoing immigration matters and was not in a relationship or in contact with his children in Brazil, though he maintained contact with his parents.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Bridging E visa under clause 050.212 of Schedule 2 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant was making, or was the subject of, acceptable arrangements to depart Australia, as required by subclause 050.212(2). The Tribunal also considered whether the applicant met the requirements of clause 050.211 regarding his immigration status.

The Tribunal reasoned that while the applicant met the immigration status requirements of clause 050.211, he failed to satisfy the grounds for seeking the visa under clause 050.212. The Tribunal found that the applicant was not making, or the subject of, acceptable arrangements to depart Australia. This conclusion was based on the applicant's extensive history of non-compliance with visa conditions, his stated intention not to depart Australia, and the lack of any genuine arrangements for his departure. The Tribunal applied the principle that "acceptable arrangements" requires genuine intentions, drawing on case law such as *Chen v MIMIA* and *Lin v MIMIA*, and concluded that the applicant's history demonstrated a lack of genuine intent to depart. The Tribunal also noted that the applicant did not meet the criteria for a Bridging (Protection Visa Applicant) visa (Subclass 051).

Consequently, the Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background and migration history In the Tribunal hearing, the applicant gave the following evidence about his personal circumstances. He is a citizen of Brazil. His last employment in Australia ceased on 30 March 2023. He was working as [an occupation] doing [specified work]. He has no family or close relatives in Australia and he is not in a relationship with anyone. In Brazil, he has his parents with whom he is in regular contact. He has two children in Brazil but he is not in contact with them. Before coming to Australia, he lived in Brazil in a city [doing] informal work in the construction industry. As of 1 June 2023, the applicant is in immigration detention at [an] Immigration Detention Centre. His most recent Bridging E visa ceased on 31 May 2023, so he is currently an unlawful non-citizen. As discussed with the applicant in the hearing and as set out in more detail in the delegate’s decision, the applicant’s background and migration history is as follows (unedited):You first and last arrived in Australia on [date] August 2015 as the holder of a Student visa (subclass TU572). This visa permitted you to remain onshore until [date] March 2016. Condition 8534 -“The holder will not be entitled to be granted a substantive visa, other than: (a) a protection visa; or (b) a Subclass 485 (Temporary Graduate) visa; or (c) a Subclass 590 (Student Guardian) visa; while the holder remains in Australia” was imposed on this visa. On 04 February 2016, you lodged a request for Condition 8534 to be waived to allow you to lodge an application for a further TU572. On 09 February 2016, your Condition 8534 waiver request was refused. Therefore, you remain subject to Condition 8534. On 12 March 2016, your TU572 ceased and on 13 March 2016 you became an unlawful non-citizen (UNC). On 12 April 2016, you were granted a Bridging E visa (subclass WE050) (BVE) on departure grounds. Condition 8512 - “The holder must leave Australia by the date specified by the Minister for the purpose” (Departure Date) was imposed on this visa. On 26 April 2016, your BVE ceased and you again became a UNC. As you did not depart Australia prior to this BVE ceasing, you did not comply with Condition 8512 “The holder must leave Australia by the date specified by the Minister for the purpose”. On 16 May 2016, you reengaged with the Department and were granted a further BVE on departure grounds, again with Condition 8512 - Departure Date imposed. On 16 May 2016, you lodged an application for a Permanent Protection visa (subclass XA866). On 23 May 2016, you were granted a further BVE in association to your ongoing XA866 application, with Condition 8101 - ”The holder must not engage in work in Australia” imposed. On 21 June 2016, you lodged an application for a further BVE in which you requested permission to work. On 04 July 2016, you were granted a further associated BVE with Condition 8101 still imposed. On 02 August 2016, you lodged an application for a BVE in which you again requested permission to work. On 03 August 2016, you were granted a further associated BVE with Condition 8101 removed, allowing you to work. On 09 May 2017, your application for an XA866 visa was refused. On 02 June 2017, you lodged an application for merits review of your XA866 refusal at the Administrative Appeals Tribunal (AAT). On 17 February 2021, the AAT affirmed your XA866 refusal. You did not seek further review of this decision. On 17 March 2021, your associated BVE ceased.On 16 March 2021, you were granted a BVE on departure grounds. This BVE permitted you to remain onshore until 08 September 2021. On 09 September 2021, you again became a UNC. On 15 September 2021, you were granted a further BVE on departure grounds. This BVE ceased on 02 March 2022. On 11 February 2022, you were granted a further BVE on departure grounds. This BVE ceased on 05 August 2022. On 08 July 2022, you were granted a further BVE on departure grounds. This BVE ceased on 05 December 2022. On 10 November 2022, you were granted a further BVE on departure grounds. Condition 8511 - “Within the time specified by the Minister for the purpose, the holder must, show an officer a ticket for travel to a country other than Australia that the Minister is satisfied will allow the holder to enter on his or her arrival” was imposed on this visa. This BVE ceased on 09 February 2023. You did not provide the Department with a valid ticket for departure prior to this date. Therefore, you did not comply with Condition 8511. On 16 January 2023, you were granted a further BVE on departure grounds. Condition 8511 - “Within the time specified by the Minister for the purpose, the holder must, show an officer a ticket for travel to a country other than Australia that the Minister is satisfied will allow the holder to enter on his or her arrival” was again imposed on this visa. This BVE ceased on 05 April 2023. You did not provide the Department with a valid ticket for departure prior to this date. Therefore, you did not comply with Condition 8511 a second time. On 17 March 2023, you were granted a further BVE on departure grounds. Condition 8512 - “The holder must leave Australia by the date specified by the Minister for the purpose” was imposed on this visa. This BVE ceased on 31 May 2023. As of today’s date 01 June 2023, you remain onshore and have not departed Australia. Therefore, you have not complied with Condition 8512. On 16 May 2023, you lodged an application for a further BVE. It is this application which is currently being assessed. As of today’s date 01 June 2023, you have no ongoing immigration matters and this is your eighth application for a BVE on departure grounds since your XA866 application was finally determined on 17 February 2021, two years and three months ago.

Evidence

Evidence Before The Court

The delegate has also set out at length in her decision the reasons given by the applicant in his BVE application forms for applying for each of his BVEs, including why he was not making arrangements to depart Australia, and evidence given by him in interviews with the Department in connection with his BVE applications since 2021. Where relevant, this is referred to below. CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS The issue in this case is whether the applicant meets any of the criteria in cl 050.212(2)-(9). Immigration status of the applicant – cl 050.211 Clause 050.211 is met if, at the time of application:(1) The applicant is:(a) an unlawful non‑citizen; or(b) the holder of a Bridging E (Class WE) visa; or(c) the holder of a Subclass 041 (Bridging (Non‑applicant)) visa.(2) The applicant is not an eligible non‑citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17). The applicant must continue to satisfy this criterion at the time of decision: cl 050.221. At the time of application, the applicant was the holder of a Bridging E (Class WE) visa. As at the time of decision, he is an unlawful non-citizen. Accordingly, he meets cl 050.211(1). The Tribunal is satisfied that the applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17). Therefore, the applicant meets cl 050.211(2). Therefore, the applicant meets cl 050.211.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 this case, the applicant is seeking to meet cl 050.212(2), namely, that he is making, or is the subject of, acceptable arrangements to depart Australia. The applicant does not claim to meet any of the other alternative criteria in cl 050.212 and based on the evidence before it, none of the other grounds in cl 050.212 are available on the evidence. Therefore, the Tribunal is not satisfied that the applicant meets the requirements of subclauses (3)-(9) of cl 050.212. For the reasons set out below, the applicant does not meet cl 050.212.Acceptable arrangements to depart Australia 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 at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to the Tribunal to consider whether the applicant’s intentions in making any arrangements to depart, were genuine. As stated in Lin at [30]:…the Tribunal, when deciding whether it was satisfied that the applicant was making acceptable arrangements to depart Australia, was entitled to consider whether the applicant’s intentions were genuine. On the facts of this case there were no real arrangements at all, but let it be assumed that some paperwork or other formal arrangements had been made, but that it was apparent that the applicant had no genuine intention of carrying through with those arrangements. That circumstance could clearly so affect the nature of the arrangements, in my view, to the extent that the respondent might not be satisfied that they were acceptable.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

The issue in this case is whether the applicant meets any of the criteria in cl 050.212(2)-(9). Immigration status of the applicant – cl 050.211 Clause 050.211 is met if, at the time of application:(1) The applicant is:(a) an unlawful non‑citizen; or(b) the holder of a Bridging E (Class WE) visa; or(c) the holder of a Subclass 041 (Bridging (Non‑applicant)) visa.(2) The applicant is not an eligible non‑citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17). The applicant must continue to satisfy this criterion at the time of decision: cl 050.221. At the time of application, the applicant was the holder of a Bridging E (Class WE) visa. As at the time of decision, he is an unlawful non-citizen. Accordingly, he meets cl 050.211(1). The Tribunal is satisfied that the applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17). Therefore, the applicant meets cl 050.211(2). Therefore, the applicant meets cl 050.211.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 this case, the applicant is seeking to meet cl 050.212(2), namely, that he is making, or is the subject of, acceptable arrangements to depart Australia. The applicant does not claim to meet any of the other alternative criteria in cl 050.212 and based on the evidence before it, none of the other grounds in cl 050.212 are available on the evidence. Therefore, the Tribunal is not satisfied that the applicant meets the requirements of subclauses (3)-(9) of cl 050.212. For the reasons set out below, the applicant does not meet cl 050.212.Acceptable arrangements to depart Australia 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 at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to the Tribunal to consider whether the applicant’s intentions in making any arrangements to depart, were genuine. As stated in Lin at [30]:…the Tribunal, when deciding whether it was satisfied that the applicant was making acceptable arrangements to depart Australia, was entitled to consider whether the applicant’s intentions were genuine. On the facts of this case there were no real arrangements at all, but let it be assumed that some paperwork or other formal arrangements had been made, but that it was apparent that the applicant had no genuine intention of carrying through with those arrangements. That circumstance could clearly so affect the nature of the arrangements, in my view, to the extent that the respondent might not be satisfied that they were acceptable.