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

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).
[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.
[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.
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
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…

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 2308592 (Migration)

Details

AGLC: 2308592 (Migration) [2023] AATA 1981
Case: [2023] AATA 1981
Decision Date: 26 June 2023

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa, Subclass 050, heard by the Administrative Appeals Tribunal. The applicant sought release from immigration detention to gather information for a partner visa application. The central dispute was whether the applicant met the criteria for the Bridging E visa, specifically concerning acceptable arrangements to depart Australia or having made a valid application for a substantive visa.

The Tribunal was required to determine if the applicant satisfied any of the subclauses within clause 050.212 of the Migration Regulations 1994. Specifically, the Tribunal considered whether the applicant was making, or was the subject of, acceptable arrangements to depart Australia under subclause 050.212(2), and whether the applicant had made a valid application for a substantive visa, or would apply for one, under subclause 050.212(3). The Tribunal also considered a request by the applicant for the case to be referred to the Minister under section 351 of the Migration Act 1958.

The Tribunal found that the applicant did not meet subclause 050.212(2) as he failed to demonstrate "acceptable arrangements" to depart Australia. The applicant's statements regarding departure were contradictory and vague, and he confirmed he had not made, nor intended to make, actual arrangements to depart at the time of his application. Furthermore, the applicant did not clearly identify which subclause of 050.212 he was seeking to meet, and the Tribunal noted that he had not yet made a valid application for a substantive visa. Regarding the request for ministerial intervention, the Tribunal, noting the Minister's guidelines and the nature of the visa under review, decided not to refer the matter, while acknowledging the applicant could still make a direct request to the Minister.

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

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. 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, 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]. [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. 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). 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. ‘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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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