2312799 (Migration) - [2023] AATA 3255

2312799 (Migration) [2023] AATA 3255 (7 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mukesh Chand (MARN: 0962241)
CASE NUMBER:  2312799
MEMBER:Lilly Mojsin
DATE:7 September 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 07 September 2023 at 11:16am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – periods of unlawful residence – applicant convicted of several offences – intended partner visa application – abiding by visa conditions – No Work condition – failing to report twice – acceptable arrangements to depart Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 74, 137, 140, 189, 194-196
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 050.223; 051.211; Schedule 8
CASES
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
Liu v Minister for Immigration & Anor [2008] FMCA 725
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) [BVE] visa under s 73 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 18 August 2023. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present review, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, 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).
On [date] November 2018, the applicant entered Australia on a Subclass 601 visa granted offshore on 20 October 2018, valid until 13 December 2019. The applicant entered and departed Australia a number of times on this visa. A second Subclass 601 visa was granted to the applicant offshore, on 23 September 2019, which was valid until 13 December 2019 and the applicant entered Australia on that visa [in] September 2019.
On 13 December 2019 and 15 May 2020, the applicant was granted onshore Subclass 600 visas, the last of which was valid until 24 September 2020.
On 1 April 2021, the applicant was granted a Bridging C visa which was valid until 11 April 2023. After the Bridging C visa ceased, the applicant remained in the community as an unlawful non-citizen until located by Australian Boarder Force (ABF) officers [in] June 2023 and detained pursuant to sec.189(1) of the Act.
[In] December 2022, the applicant was convicted of possession of Prohibited Drug (Methyamphetamine) and fined $200. The applicant was also convicted of possession of drug paraphernalia containing prohibited drug/plant and fined $100…

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 2312799 (Migration)

Details

AGLC: 2312799 (Migration) [2023] AATA 3255
Case: [2023] AATA 3255
Decision Date: 7 September 2023

CaseChat Overview and Summary

The applicant sought review of a decision by the Tribunal affirming the refusal to grant a Bridging E (Class WE) visa. The applicant had been detained and had a history of unlawful residence in Australia, coupled with convictions for several offences. The applicant's intention was to apply for a partner visa upon release from detention.

The primary legal issues before the court were whether the applicant met the criteria for a Bridging E visa under clause 050.212 of the Migration Regulations 1994, specifically concerning the timing of substantive visa applications and the interaction with section 195 of the Migration Act 1958. The court also considered whether the applicant qualified for a Bridging (Protection Visa Applicant) visa under clause 051.211.

The court reasoned that for clause 050.212(3)(b) to be engaged, the Minister must have allowed a period for the applicant to apply for a substantive visa, and the applicant must demonstrate they are within that period without further time being granted. The court noted that the applicant had not indicated compliance with the timeframes stipulated in section 195 for applying for a visa while in detention. Furthermore, the applicant did not meet the criteria for a Bridging (Protection Visa Applicant) visa as they were not a relevant eligible non-citizen under clause 051.211.

The Tribunal's decision to affirm the refusal to grant the Bridging E visa was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant intends, if released, to move back to the shared house and not live with her partner, unless required to do so. He plans to move into [Town 2] once his curfew is over. He has a court date [this month]. CONSIDERATION OF CLAIMS, EVIDENCE AND FINDINGS 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. The applicant was detained [in] June 2023. As the applicant is in immigration detention s.195 of the Act is relevant and states: Detainee may apply for visa(1) A detainee may apply for a visa(a) within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or(b) if he or she informs an officer in writing within those 2 working days of his or her intention to so apply--within the next 5 working days after those 2 working days.(2) A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time. When put to the applicant that detainees may apply for ‘a visa’ within 2 working days (following compliance with s 194) or 5 working days after those 2 working days if an officer is informed in writing of their intention to apply, she did not suggest that she had made an application for the view within the time allowed by s.195 of the Act. Clause 050.212(3)(a), is concerned with a valid application for a substantive visa already made. Alternatively, cl 050.212(3)(b) requires the Minister to be satisfied that the applicant will apply in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia. The applicant’s adviser contends that cl 050.212(3)(b) allows the applicant to apply for a partner visa once the bridging visa is granted and the applicant is out of detention and cl.050.212(3)(b) does not require that s195(1) is to be met as it is a stand-alone clause for any applicant who applies for a bridging visa, and is without any reference to s195. He also contends that the “period allowed by the minister for the purpose” has not been defined and has not been referenced to s195. This period is a period that the minister will determine when granting the bridging visa so that the applicant can lodge a substantive visa during that time. The interaction between cl 050.212(3)(b) and s.195 was considered in obiter comments in Liu v MIAC. The Court considered that for cl 050.212(3)(b) to be engaged the Minister must have allowed for an application for a substantive visa to be made, noting that the use of the past tense of the verb ‘allow’ means that an applicant must demonstrate they are within time to apply for a particular visa if released from detention, without any further time to be allowed for that purpose. The Court also accepted the Minister’s submission that the expression ‘of a kind that can be granted if the applicant is in Australia’ in cl 050.212(3)(b) requires that a substantive visa could be granted to the applicant at the time of their bridging visa application. There must be evidence of an intention by the applicant to make a further visa application and to demonstrate that, if released from detention, they would be within time to apply for a visa without any further time being allowed.

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.Lilly MojsinMember

Ratio Decidendi

Legal Principle Established

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