2312937 (Migration) - [2023] AATA 3546

2312937 (Migration) [2023] AATA 3546 (1 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2312937

MEMBER:Mireya Hyland
DATE:1 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 01 September 2023 at 1:50pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – periods of unlawful residence – multiple bridging visas on departure grounds – judicial review – no current intention of departing – request for Ministerial Intervention – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007
Migration Act 1958, ss 48, 73, 85, 137, 140, 189, 417
Migration Regulations 1994, Schedule 2, cls 050.212, 051.211; rr 1.03, 1.08, 1.09, 1.12
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 on 23 August 2023 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 21 August 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 delegate refused to grant [the applicant] the Bridging Visa E (BVE) on the basis that she was not satisfied that he meets any of the subclauses in cl.050.212. That decision was provided to the Tribunal by [the applicant] with his review application.
[The applicant] appeared before the Tribunal on 31 August 2023 via Microsoft Teams video conference to give evidence and present arguments in his case. The hearing was conducted in English. [The applicant] is not represented in relation to the review. The Tribunal gave [the applicant] until 4 September 2023 to provide additional information, being evidence he has forwarded a request for the Minister to exercise his power under s.417 of the Act to the Department of Home Affairs (the Department). While the Tribunal appreciates that this was a short timeframe in its considerations it balanced the fact that the information would be readily available to [the applicant] having just been submitted and the fact that this case is a time limited review that must be decided by 4 September 2023. However, the Tribunal would have granted [the applicant] more time if it had been necessary or requested. On 1 September 2023, [the applicant] contacted the Tribunal with additional information.
The issue in this…

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 2312937 (Migration)

Details

AGLC: 2312937 (Migration) [2023] AATA 3546
Case: [2023] AATA 3546
Decision Date: 1 September 2023

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision by the Migration Review Tribunal (MRT) to affirm a decision not to grant the applicant a Bridging E (Class WE) visa. The applicant had a complex migration history in Australia, having first entered in 1997 and becoming an unlawful non-citizen on multiple occasions since March 2000. He had been granted numerous bridging visas, primarily on the grounds that he was making or the subject of acceptable arrangements to depart Australia. His most recent bridging visa ceased on 11 May 2021, after the MRT affirmed a decision to refuse him a Protection visa.

The primary legal issue before the court was whether the applicant met the criteria for the grant of a Bridging E (Class WE) visa, specifically under clause 050.212 of the relevant regulations. This clause requires an applicant to meet certain conditions, including having acceptable arrangements to depart Australia. The applicant also sought a Subclass 051 Bridging (Protection Visa Applicant) visa, which required him to be a relevant eligible non-citizen as defined in clause 051.211.

The court considered the applicant's extensive history of unlawful residence and multiple bridging visas granted on departure grounds. It noted that the applicant had not departed Australia since 1998 and had become an unlawful non-citizen on four separate occasions. The court found that the applicant did not meet the requirements for the Subclass 051 visa because he was not a relevant eligible non-citizen. Consequently, the 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 [The applicant] has a complicated migration history. On 10 September 1997, he was granted a [Student] visa and first entered Australia as the holder of that visa [in] October 1997. On 25 November 1997, he applied for and was granted a further Student visa permitting him to remain in Australia until 15 March 2000. [In] January 1998, he departed Australia returning [in] February 1998. He has not departed Australia since. On 16 March 2000, [the applicant] became an unlawful non-citizen for the first time. On 6 October 2005, he was located by immigration officers and detained under s.189 of the Act at [a named] Detention Centre. On 9 November 2005, he was granted his first BVE on the grounds that he was making, or was the subject of, acceptable arrangements to depart Australia and was released from immigration detention. As part of that visa grant, he paid an AUD10,000 bond to ensure compliance with the visa’s conditions. On 30 November 2005, he was granted a second BVE, also on departure grounds. On 13 December 2005, that visa ceased and on 14 December 2005 he, again, became an unlawful non-citizen. On 2 October 2012, [the applicant] reengaged with the Department and was granted a third BVE on departure grounds which ceased naturally on 5 October 2012. Between 5 October 2012 and 27 November 2012, he was granted a further seven BVE's, all on the grounds that he would depart Australia. On 4 December 2012, his 10th BVE ceased and for the third time he became an unlawful non-citizen on 5 December 2012. On 19 August 2016, [the applicant] again reengaged with the Department and was granted his 11th BVE on the grounds that he was going to leave Australia. On 26 August 2016, that BVE ceased and he was granted a 12th BVE also on departure grounds. On 2 September 2016, he was granted a 13th BVE permitting him to remain onshore until 23 September 2016 on the basis that he was going to depart Australia voluntarily. Instead, on 1 September 2016 he applied for a Permanent Protection (Class XA) Subclass 866 visa and on 5 September 2016 he was granted a 14th BVE in association with that application. On 28 October 2016, his Protection visa application was determined to be invalid and the 14th BVE ceased. On 30 November 2016, [the applicant] lodged a second Protection visa application and his 15th BVE was granted in association with that application on 5 December 2016. On 10 May 2017, his Protection visa application was refused and on 2 June 2017 he applied to the Tribunal (differently constituted) for review of that decision. He was granted his 16th BVE in relation to that merits review application, ceasing the 15th BVE. On 6 April 2021, the Tribunal affirmed the decision to refuse to grant [the applicant] a Protection visa (the 2021 Protection visa refusal) and on 11 May 2021 his 16th BVE ceased. On 12 May 2021, he became an unlawful non-citizen for the fourth time.

Decision

Reasons for decision

The visa application is also an application for a Subclass 051 Bridging (Protection Visa Applicant) visa. [The applicant] entered Australia lawfully as the holder of a Student visa in 1997 and re-entered Australia lawfully in 1998. 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.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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