2308592 (Migration)

[2023] AATA 1981

2308592 (Migration) [2023] AATA 1981 (26 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2308592

MEMBER:Mireya Hyland

DATE:26 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 26 June 2023 at 7:56am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – obtaining a passport – no current intention of departing – valid application for a substantive visa – criminal detention – decision under review affirmed       

LEGISLATION

Australian Citizenship Act 2007
Migration Act 1958, ss 5, 48, 73, 85, 137, 140, 195, 351
Migration Regulations 1994, Schedule 2, cls 2 010.211, 050.212, 051.211; rr 1.03, 1.09, 1.12

CASES

Chen v MIMIA [2001] FCA 285
Davis v MICMSMA
DCM20 v Secretary of Department of Home Affairs [2023] HCA 10
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, [named], a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).

2. [The applicant] applied for the visa on 13 June 2023. At that time Class WE contained two subclasses: Subclass 050 Bridging (General) and Subclass 051 Bridging (Protection Visa Applicant). 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 (the Regulations). The decision to refuse to grant the visa was made on 15 June 2023 on the basis that [the applicant] did not meet any of the subclauses in cl.050.212 of the Regulations.

3. [The applicant] appeared before the Tribunal on 23 June 2023 to give evidence and present arguments. The Tribunal received oral evidence from his wife, [named], who is also representing [the applicant] in relation to the review. The Tribunal made a decision not to take evidence from [the applicant’s] young children because they had no probative information to provide to the Tribunal on the substantive issues in [the applicant’s] case.

4. The issue in this case is whether [the applicant] meets any of the subclauses in cl.050.212 as required by the Regulations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. At the time of the visa application, on 13 June 2023, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). In this case, [the applicant] failed to identify which of the subclauses he is seeking to meet. When asked at the hearing why he had applied for a Bridging Visa E he told the Tribunal that he would like to be released from Detention so he can collect the necessary information to apply for a partner visa. For the reasons below, [the applicant] does not meet cl.050.212 of the Regulations.

6. 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.

7. ‘Acceptable arrangements’ is not defined in the Regulations, but the Departmental Instructions, while not binding on the Tribunal, do, nonetheless, provide some guidance.[1] It is also open to consider whether the applicant’s intentions in making any arrangements to depart are genuine.[2]

   [1] Chen v MIMIA [2001] FCA 285 at [26] and Lin v MIMIA [2001] FCA 283 at [26].

   [2] Lin v MIMIA [2001] FCA 283 at [30].

8. [The applicant] told the Tribunal that he is and is not planning to depart Australia. He explained, first, that he would depart Australia and take his family back to Lebanon if he was unsuccessful in a further substantive visa application. Second, he told the Tribunal that he could not make arrangements to depart Australia because he could not get a passport. Lebanon was requiring that he provide his criminal record before giving him travel documents, but because there is no government in Lebanon, he is unable to do so. The Tribunal does not consider such vague plans to fall within ‘acceptable arrangements’ to depart Australia. It clarified with [the applicant] at the hearing that on 13 June 2023 he had not made any arrangements, and did not, at that time, intend to make any actual arrangements, to depart Australia. He confirmed that he was not making, and was not the subject of, acceptable arrangements to depart Australia at the time when he made the application.

9. For these reasons, 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, he does not meet cl.050.212(2).

10. 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.

11. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa.[3] 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.[4]

    [3] s.5(1) of the Act.

    [4] s.5(9) of the Act.

12. [The applicant] told the Tribunal that he wanted a Bridging Visa E to accumulate the paperwork necessary to apply for a partner visa. However, he confirmed at the hearing that on 13 June 2023 he had not made any valid application for a substantive visa. Therefore, he does not meet cl.050.212(3)(a). Although he claimed at the hearing that he intended to apply for a partner visa, according to the delegate’s decision, which [the applicant] provided with the review application, he did not make that claim to the Department when he made the Bridging Visa E application. Therefore, the Tribunal is disinclined to believe that on 13 June 2023 he intended to apply for a substantive visa within the specified period. In any event, the period allowed by the Minister for the purpose of a detainee applying for a visa is set out in s.195 of the Act. It is within two working days after the day on which he was made aware of that restriction or within five working days after those two days with notice. In either case, that would have been when [the applicant] was detained in August 2021. The only substantive visa he could apply for after that time is a protection visa, but he confirmed to the Tribunal that he is barred from making a protection visa application by s.48A of the Act. Therefore, he does not meet cl.050.212(3)(b).

13. Accordingly, [the applicant] does not meet cl.050.212(3).

14. 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.

15. [The applicant] confirmed that at the time of application neither he nor the Minister had applied for judicial review in relation to such a decision and there is no evidence to the contrary before the Tribunal.

16. The Tribunal finds that [the applicant] does not meet cl.050.212(3A). The Tribunal notes that subclause (4A) does not apply in this case.

17. Subclause 050.212(4) is met if:

    (a)the applicant has applied for judicial review of a decision in relation to a substantive visa (other than a decision to refuse the visa); or

    (aa)the Minister has applied for judicial review of a decision in relation to the applicant’s substantive visa application (other than a decision relating to refuse the visa); or

    (b)the applicant has applied for merits review of a decision to cancel a visa; or

    (ba)the applicant has applied under s.137K for revocation of the cancellation of a visa; or

    (bb)the applicant has applied for merits review of a decision under s.137L not to revoke the cancellation of a visa; or

    (c)the Minister (or Tribunal) is satisfied that the applicant will make an application of a kind referred to in cl 050.212(4)(b), (ba) or (bb)

    (d)the applicant has applied for judicial review of the validity of a law that affects their eligibility to apply for a substantive visa or their entitlement to be granted or continue to hold a substantive visa.

18. [The applicant] confirmed that at the time of application neither he nor the Minister has applied for any judicial review in relation to any substantive visa decision. He also confirmed that, other than this bridging visa, he had not applied for any merits review and has not applied for revocation of the cancellation of any visa. Nor is there any evidence to the contrary before the Tribunal and, on his evidence, it is not satisfied that he does not intend to make any such applications. [The applicant] also confirmed that he has not applied for judicial review of the validity of any law.

19. [The applicant] does not meet cl.050.212(4). The Tribunal notes that subclause (4A) does not apply in this case.

20. Subclause 050.212(4AAA) is met if the applicant has applied for a declaration from a Court that the Act does not apply to the applicant, or has applied for judicial review or merits review of a decision made in relation to the applicant under the Australian Citizenship Act 2007, and those proceedings have not been completed.

21. [The applicant] confirmed to the Tribunal that at the time of application he had not applied for a declaration from a Court and was, and is, not the subject of any decision made in relation to the Australian Citizenship Act 2007.

22. [The applicant] does not meet cl.050.212(4AAA). The Tribunal notes that subclause (4A) does not apply in this case.

23. Subclause 050.212(4AA) is met if the applicant is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in cl 050.212(3A)(b), (4)(a), (4)(aa) or (4)(d), that other person is not a party to a representative proceeding, and the applicant made a combined substantive visa application with that other person’s application.

24. Subclause 050.212(4AB) is met if the applicant is a member of the immediate family (as defined under r.1.12AA) of a person who meets the requirements of cl.050.212(4AAA), or is a brother or sister (who has not turned 18) of a person who meets the requirements of cl.050.212(4AAA) and who has not turned 18.

25. [The applicant] confirmed at the hearing that at the time of application he was, and is, not such a person and he does not meet cl.050.212(4AA) or (4AB).

26. Subclause 050.212(5) is met if the applicant held a visa that was cancelled under s.140(1) or (3) because another person’s visa was cancelled, and that other person has applied for review of their visa cancellation decision (or alternatively, the Tribunal is satisfied the other person will make such an application).

27. Subclause 050.212(5A) is met if the applicant held a visa that was cancelled under s.140(1), (2) or (3) because another person’s visa was cancelled under s.137J, and that other person has applied for revocation of their visa cancellation under s.137K or has applied for merits review of a non-revocation decision made under s.137L (or alternatively, the Tribunal is satisfied the other person will make such an application).

28. [The applicant] confirmed that he has not had a visa cancelled under s.140 of the Act. He does not meet cl.050.212(5) or (5A).

29. Subclause 050.212(5B) is met if the applicant is a person to whom s.48A of the Act applies, and the applicant has made a request to the Minister to determine under s.48B that s.48A does not apply. There must not have previously been such a request under s.48B in relation to the applicant, or a request to the Minister for the exercise of the Minister’s power under ss.345, 351 or 417 of the Act.

30. Although [the applicant] told the Tribunal that he is a person to whom s.48A of the Act applies he confirmed that at the time of application, on 13 June 2023, he had, and he has, not made a request to the Minister to determine under s.48B of the Act that s.48A does not apply.

31. Clause 050.212(5B) does not apply to [the applicant].

32. Subclause 050.212(6) is met if the applicant is the subject of a decision that relates to a visa application made in Australia, or a visa cancellation, and has made a request to the Minister to substitute a more favourable decision under ss.345, 351 or 417 of the Act. The decision in question must be a decision for which the Minister has the power to substitute a decision under ss.345, 351 or 417, and there must not have previously been such a request, or a request for a determination under s.48B of the Act. _

33. Subclause 050.212(6AA) is met if the Minister has substituted a decision under ss.345, 351 or 417 of the Act, but the visa has not been granted because of a visa cap in operation under s.85 of the Act.

34. Subclause 050.212(6A) is met if the applicant holds a Bridging E visa that was granted on the basis of meeting cl.050.212(6AA), the applicant is the subject of a favourable exercise of the Ministerial power under ss.345, 351 or 417 of the Act, and the Tribunal is satisfied that the applicant has a compelling need to work.

35. Subclause 050.212(6B) is met if the applicant has an outstanding request to the Minister under ss.345, 351 or 417 of the Act made before 1 July 2009, and holds, or has held, a Bridging E visa granted before 1 July 2009 on the basis of the applicant meeting cl.050.212(6A) or, for visa applications made on or after 14 September 2009, cl.050.212(6) or (6A).

36. Although [the applicant] claimed to have made a request to the Minister to intervene in his case, that request was made under s.195A and s.197AB, not ss.345, 351 or 417 of the Act. Nor did [the applicant] at the time of application, or at the time of this decision, have an outstanding request with the Minister under ss.345, 351 or 417 of the Act or have a favourable decision by the Minister pursuant to ss.345, 351 or 417 of the Act.  

37. [The applicant] does not meet cl.050.212(6), (6AA), (6A), or (6B).

38. Subclause 050.212(7) is met if the applicant is in criminal detention, and no criminal justice stay certificate or warrant is in force. Applicants are in ‘criminal detention’ if they are serving a term of imprisonment, including periodic detention, following conviction for an offence, or in prison on remand. However, a person is not in criminal detention where they are subject to a community service order, on parole after serving part of a term of imprisonment, or on bail awaiting trial: r.1.09. Periodic detention is defined in r.1.03 to mean a system of restriction of liberty by which periods at liberty alternate with periods in prison.

39. [The applicant] confirmed to the Tribunal that he is no longer in criminal detention and does not meet cl.050.212(7).

40. Subclause 050.212(8) is met if the applicant holds a Bridging Visa E that was granted as a result of a valid application for a substantive visa that could be granted onshore and is subject to condition 8101, and the Tribunal is satisfied that the applicant has a compelling need to work. ‘Compelling need to work’ is defined in r.1.03 as having the meaning set out in r.1.08. Regulation 1.08 provides that a non-citizen has a compelling need to work if he or she is in financial hardship.

41. [The applicant] does not hold a Bridging Visa E and does not meet cl.050.212(8).

42. Subclause 050.212(9) is met if a decision to refuse the applicant (or a member of the family unit) a Class BC or Class BI visa is the subject of valid judicial review proceedings that have not been completed, and the applicant (or member of the family unit) does not satisfy cl.010.211(6)(c) for the grant of a Bridging A (Class WA) Subclass 010 visa.

43. [The applicant] confirmed that he has not yet made a partner visa, or Interdependency visa, application and does not meet cl.050.212(9).

44. For these reasons, [the applicant] does not satisfy the criteria for the grant of a Subclass 050 Bridging (General)) visa.

45. The visa application is also an application for a Subclass 051 Bridging (Protection Visa Applicant) visa. [The applicant] confirmed that he is not a relevant eligible non-citizen as set out in cl.051.211 and, therefore, does not meet the requirements for the grant of that visa.

46. [The applicant] requested that the Tribunal refer his case to the Minister pursuant to s.351 of the Act. The Tribunal has considered his case, all the documents and testimony provided, and the Minister’s guidelines on ministerial powers (s351, s417 and s501J) (the Guidelines). It notes that the High Court has found the Guidelines exceed the statutory limit on executive power imposed by s.351(3) of the Act,[5] but it believes they remain good guidance on what cases are appropriate for it to bring to the Minister’s attention for his personal consideration. Because this is the review of a Bridging Visa E, which the Minister has specifically identified as not appropriate to refer, and [the applicant] still has a request for ministerial intervention pending before the Minister, the Tribunal has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    [5] Davis v MICMSMA; DCM20 v Secretary of Department of Home Affairs [2023] HCA 10, High Court of Australia, Kiefel CJ, Gageler, Gordon, Edelman, Steward, Gleeson & Jagot JJ, M32/2022 and S81/2022, 12 April 2023.

    DECISION

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

    Mireya Hyland
    Member