2312937 (Migration)

Case •

[2023] AATA 3546

•

1 September 2023

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

  1. 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).

  2. [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.

  3. [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.

  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. [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.

  6. 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.

  7. 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.

  8. 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.

  9. 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.

  10. [In] March 2023, [the applicant] was remanded into criminal custody and refused bail for a number of offences relating to the destruction of property in excess of AUD2,000 and misusing a carriage service to harass or make a threat, including the offence of ‘Sexually Touch Another Person Without Consent-T2’. On 14 August 2023, he was convicted and sentenced to a Community Correction Order for [period] with an Apprehended Domestic Violence Order in effect for two years. Following his release from criminal custody, he was located by Australian Border Force officers and detained at [a named] Detention Centre under s.189 of the Act.

  11. On 21 August 2023, he lodged his 17th BVE application from immigration detention which was refused on 23 August 2023 and is the subject of the current review.

  12. At the time of the visa application, on 21 August 2023, [the applicant] must have met one of the alternatives set out in cl.050.212(2)-(9). In this case, [the applicant] has identified that he is seeking to meet subclause (3A) (judicial review) and subclause (6) (ministerial intervention). At Question 14 in his visa application form (the application) he ticked that he is applying for a visa to give him lawful status while awaiting the outcome of judicial review. However, Part E in the application (the details of the judicial review) is blank. At the hearing, [the applicant] told the Tribunal that he has made a request to the Minister for ministerial intervention under s.417 of the Act related to his 2021 Protection visa refusal. The Tribunal gave [the applicant] time to submit evidence in support of his claim. However, when he contacted the Tribunal on 1 September 2023 he did not provide any evidence of a request to the Minister. For the reasons below, [the applicant] does not meet cl.050.212 of the Regulations.

  13. 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.

  14. ‘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].

  15. According to the delegate’s decision, which [the applicant] provided to the Tribunal with his review application, [in] August 2023 in his initial interview when he was taken into immigration detention, [the applicant] said that he intended to remain in Australia and apply for a visa. He did not indicate that he was preparing to leave Australia. The application states that he had made a judicial review application which also is inconsistent with an intention to imminently depart Australia. In a handwritten submission to the Tribunal, [the applicant] claims that he cannot get a passport because he does not have his Pakistani identification card. This implies that he cannot leave Australia and is also inconsistent with the idea that he has made or is making acceptable arrangements to depart.

  16. At the hearing, [the applicant] told the Tribunal that he is happy to depart Australia voluntarily. However, he also told the Tribunal that he had made a request to the Minister to use his power under s.417 to grant him a visa to stay in Australia and that he intended to apply for judicial review of his 2021 Protection visa refusal. The Tribunal put to [the applicant] that, given his migration history and the fact that he has been granted 13 BVEs since 2005 all on the basis that he was making, or was the subject of, acceptable arrangements to depart, but had not yet departed Australia, it would need significant evidence to support such an intention if it were to be satisfied that he meets the criterion. He indicated that he understood. He also confirmed he had applied to the Minister for intervention and had made no arrangements to leave Australia. There has been no evidence from him since the hearing that he has made arrangements or that he intends to make arrangements to leave Australia.

  17. 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).

  18. 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.

  19. ‘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.

  20. [The applicant] confirmed that, at the time of application, he had not made any visa application except the application for the visa that is the subject of this review, which is for a bridging visa and not a substantive visa. Therefore, he does not meet cl.050.212(3)(a). Although he did claim in the initial interview with the Department that he intended to apply for a visa, he did not provide any details or indicate what type of visa. He did not identify in the application that he will make a substantive visa application nor did he claim that he would be making a visa application at the hearing. He spoke about judicial review of the 2021 Protection visa refusal and his request for ministerial intervention, but otherwise he told the Tribunal that he was willing to leave Australia voluntarily. Given the evidence before it, the Tribunal is not satisfied that [the applicant] will apply for a substantive visa. Therefore, he does not meet cl.050.212(3)(b).

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

  22. 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.

  23. In the application [the applicant] states that he has made the application to be granted lawful status while he awaits the outcome of a judication review application, however there are no details of judicial review in the application. In a handwritten submission to the Tribunal he states that he was out of time to apply for judicial review of the 2021 Protection visa refusal due to a ‘lack of information and communication’. It states that this is why he was detained by the Australia Border Force, which is not the case. It states that he intends to apply for judicial review soon and is seeking LegalAid, who he claims is ‘working on it’. At the hearing he confirmed that at the time of application he had not applied for judicial review in relation to a decision and there is no evidence to the contrary before the Tribunal. Nor is there evidence that the Minister has applied for judicial review of a relevant decision.

  24. 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.

  25. 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.

  26. [The applicant] confirmed that at the time of application he had not applied for judicial review in relation to any substantive visa decision. Nor is there any evidence that the Minister has applied for judicial review of a decision relevant to subclause (4) or at all. As the Tribunal put to him at the hearing, which he confirmed, [the applicant] has not had any visa cancelled. The Tribunal finds that he has not been the subject of any substantive visa decision other than the grant of his Student visas and the 2021 Protection visa refusal. On the evidence before it, the Tribunal is not satisfied that [the applicant] has made, or intends to make, any relevant applications, not least because he has not been the subject of a relevant subclause (4) decision. [The applicant] also confirmed that he has not applied for judicial review of the validity of any law.

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

  28. 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.

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

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

  31. 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.

  32. 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.

  33. [The applicant] confirmed that he does not have family in Australia. At the time of application he was, and is, not a relevant person and so does not meet cl.050.212(4AA) or (4AB).

  34. 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).

  35. 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).

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

  37. 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.

  38. [The applicant] is a person to whom s.48A of the Act applies and in his initial interview he said that he intended to apply for a visa. However, when the Tribunal asked him at the hearing if he was asking the Minister to allow him to make another visa application, he confirmed that at the time of application he had not, and he has not, made a request to the Minister to determine under s.48B of the Act that s.48A does not apply.

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

  40. 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, at the time of application, 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. _

  41. [The applicant] is the subject of a decision relevant to subclause (6), being the 2021 Protection visa refusal. He told the Tribunal at the hearing that he made a request to the Minister to substitute a more favourable decision under s.417 of the Act. He confirmed that he had not previously made a request and had already confirmed that he has not made a request under s.48B of the Act. The Tribunal gave [the applicant] until 4 September 2023 to provide evidence of the request. On 1 September 2023, [the applicant] contacted the Tribunal and said that, in fact, he had not made a request for ministerial intervention. In any event, subclause (6) must be met at the time of application. [The applicant] admitted that while he had attempted to make a relevant request at the time of the Tribunal hearing (of which there is no evidence), he had not made that request at the time of application. The Tribunal is not satisfied that [the applicant] meets cl.050.212(6) of the Regulations.

  1. 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.

  2. 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.

  3. 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).

  4. There is no evidence that [the applicant] meets, nor does he claim to meet, cl.050.212(6AA), (6A), or (6B).

  5. 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.

  6. [The applicant] is no longer in criminal detention and does not meet cl.050.212(7).

  7. 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.

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

  9. 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.

  10. [The applicant] confirmed he has not made any visa application. He does not meet cl.050.212(9).

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

  12. 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

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

    Mireya Hyland
    Member



Key Legal Topics

Areas of Law

  • Immigration

  • Administrative Law

Legal Concepts

  • Judicial Review

  • Procedural Fairness

  • Jurisdiction

  • Statutory Construction

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Cases Citing This Decision

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Cases Cited

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Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283