2307852 (Migration) - [2023] AATA 2396

2307852 (Migration) [2023] AATA 2396 (15 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2307852
MEMBER:Anne Grant
DATE:15 June 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:
·cl 050.212(2) of Schedule 2 to the Regulations; and
·cl 050.222 of Schedule 2 to the Regulations.

Statement made on 15 June 2023 at 3:11pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – need for some preparation – getting a passport – accommodation and financial support – criminal history – drug addiction – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212, 050.211, 050.222
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).
The applicant applied for the visa on 29 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) which requires that an 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 delegate was not satisfied that the applicant intended to or was making acceptable arrangements to depart Australia.
The applicant appeared before the Tribunal on 14 June 2023 to give evidence and present arguments by video conference using the Microsoft Teams application. The Tribunal also received oral evidence by telephone from [Mr A]. 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 matter should be remitted for reconsideration.
Consideration of Claims and evidence
The issue in this case is whether the applicant satisfies any of the subclauses in clause 050.212, in particular, whether he is making or it the subject of acceptable arrangements to depart Australia.
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…

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 2307852 (Migration)

Details

AGLC: 2307852 (Migration) [2023] AATA 2396
Case: [2023] AATA 2396
Decision Date: 15 June 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Bridging E (Class WE) visa, Subclass 050 (Bridging (General)). The central dispute revolved around whether the applicant had made acceptable arrangements to depart Australia, a key criterion for the visa.

The Tribunal was required to determine if the applicant satisfied subclause 050.212(2) of the Migration Regulations 1994, which mandates that the applicant be making, or be the subject of, acceptable arrangements to depart Australia. This criterion must be met at the time of the visa application and continue to be satisfied at the time of the decision. The Tribunal also considered the applicant's intention and the genuineness of any arrangements made for departure.

The Tribunal found that the applicant's stated intention to depart Australia and return to India was coherent and plausible. While acknowledging the absence of a current passport and the need to resolve family issues before departure, the applicant provided evidence of a plan to secure assurances from his father regarding his safety in Punjab to retrieve lost educational and career certificates. He also intended to reconnect with relatives in Uttar Pradesh, who could assist in facilitating his safe return to India. The Tribunal was satisfied that the applicant met the criteria under cl 050.212(2) and cl 050.222.

Consequently, the Tribunal remitted the matter to the Minister for reconsideration, with a direction that the applicant meets the specified criteria for the Subclass 050 visa.

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 matter should be remitted for reconsideration. Consideration of Claims and evidence The issue in this case is whether the applicant satisfies any of the subclauses in clause 050.212, in particular, whether he is making or it the subject of acceptable arrangements to depart Australia. 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), and the applicant does not claim to meet any of the other alternative criteria in cl 050.212. For the reasons below, I am satisfied that the applicant meets 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 (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]). According to the delegate’s decision, the applicant told the delegate that he did intend to depart, but also that he did not have a current passport and that he has ‘issues’ with his family that he needs to resolve before he can depart Australia – that he needed some months to be able to sort those issues out. In answer to questions about his current intention and arrangements to depart Australia, the applicant gave coherent and plausible evidence. At hearing, the applicant said that he has had enough of detention and all the troubles he has had in Australia and wants to return to India. He has always honestly stated his intention to return to India (even back in 2021 on a different bridging visa application) but as he had told the delegate, there are issues he has to resolve before he can do so safely. While he acknowledged that he may not be eligible for a protection visa, the applicant said he has to do what he can to make sure that his family (his father, mainly) don’t harass him if he returns to Punjab to collect his official documents, such as career and education certificates, which he has lost. He has to go to Punjab to get new copies of those certificates. So, his plan is to reach out to his relatives here in Melbourne and ask them to contact his father and get an assurance that the applicant will be left alone and safe if he returns temporarily to Punjab, knowing that he then would leave the area. He has close relatives in Uttar Pradesh, and he plans to go there and live with them but again, that has to be arranged. They are family, members of who are living in Melbourne. He lost contact with them during 2020 and 2021 when he was ‘at his worst’ and they will need to see him and be shown that he is no longer living that life, and that he is clean and wants to start afresh. Then, with their help, he can make arrangements to go back to India safely.

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:·cl 050.212(2) of Schedule 2 to the Regulations; and · cl 050.222 of Schedule 2 to the Regulations.Anne GrantMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.