2319578 (Migration) - [2023] AATA 4741

2319578 (Migration) [2023] AATA 4741 (11 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2319578
MEMBER:James Silva
DATE:11 December 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 11 December 2023 at 4:58pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – previous visa expired, period as unlawful non-citizen, homelessness and mental health – criminal convictions and imprisonment – further charges and immigration detention – wish to be released from detention for medical treatment – previous bridging visas on visa application or departure grounds – no application for substantive visa made – intention to apply for protection or student visa not genuine – no resources, material support or advice – no claims or evidence of eligibility on other specified grounds – not necessary to consider compliance with conditions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), (9), 73, 376
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212(3), 050.221, 050.223
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 378 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) visa under s 73 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 24 November 2023. At that time Class WE contained two subclasses: Subclasses 050 and 051. 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 (Cth) (the Regulations). Relevantly to this matter, the primary criteria include cl 050.212, which requires the applicant to meet one or more of the primary criteria for the grant of a bridging visa.
The decision to refuse to grant the visa was made on 29 November 2023 on the basis that the applicant did not satisfy the primary criteria at the time of application (24 November 2023); and that he did not continue to satisfy these at the time of decision.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant satisfies one of the alternative grounds set out in cl.050.212(2)-(9) at the time of application (‘the threshold criteria’): cl.050.212; and whether he continues to meet this criterion at the time of decision: cl.050.221.
Background
The applicant is a [Age]-year-old man from Sri Lanka. The decision under review, a copy of which he provided to the Tribunal, provides background to this application.…

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 2319578 (Migration)

Details

AGLC: 2319578 (Migration) [2023] AATA 4741
Case: [2023] AATA 4741
Decision Date: 11 December 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant the applicant, a Sri Lankan national, a Bridging E (Class WE) visa. The applicant had arrived in Australia in January 2017 on a student visa which expired in August 2020, after which he remained in Australia as an unlawful non-citizen. During this period, he had been convicted of criminal offences, served a period of detention, and had been granted several bridging visas on the basis of intending to lodge a student visa application or making arrangements to depart Australia. Further criminal convictions and subsequent detention led to further bridging visa grants on departure grounds. The applicant sought release from immigration detention for medical treatment, claiming homelessness and mental health issues, and alleging loss of important documents and support.

The primary legal issue before the court was whether the applicant satisfied the threshold criteria for a Bridging E visa under clause 050.212 of the Migration Regulations 1994 at the time of his application, and whether he continued to meet these criteria at the time of the decision, as required by clause 050.221. The court was also required to consider whether the applicant met the criteria for a Bridging (Protection Visa Applicant) visa (Subclass 051), as his application was also considered on this basis.

The court found that the applicant did not satisfy the criteria for a Bridging E visa. It noted that the applicant had not made an application for a substantive visa, and his stated intentions to apply for a protection or student visa were not considered genuine. The court also found that the applicant lacked the necessary resources, material support, or advice to establish eligibility under the specified grounds. Consequently, it was not necessary to consider the applicant's compliance with visa conditions. Furthermore, the applicant was not considered a relevant eligible non-citizen for the grant of a Bridging (Protection Visa Applicant) visa.

The court affirmed the decision not to grant the applicant a Bridging E (Class WE) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue in this case is whether the applicant satisfies one of the alternative grounds set out in cl.050.212(2)-(9) at the time of application (‘the threshold criteria’): cl.050.212; and whether he continues to meet this criterion at the time of decision: cl.050.221.Background The applicant is a [Age]-year-old man from Sri Lanka. The decision under review, a copy of which he provided to the Tribunal, provides background to this application. In brief, it states:§ [In] January 2017, the applicant arrived in Australia on a student visa (subclass 500 Higher Education Sector). The visa expired on 30 August 2020.§ The applicant remained in Australia from this time, without a visa.§ Criminal offences: During this period, the applicant was charged and convicted of various offences, including unlawful assault and contravening a family violence order. He served a period in criminal detention.§ The applicant has been granted a number of Bridging E visas: A bridging E visa granted on 23 November 2020, on the basis that the applicant was intending to lodge a student visa application. Bridging E visas issued on 7 December 2020 and 15 December 2020, both on the grounds that he was making acceptable arrangements to depart Australia. § Further criminal offences: In May 2023, the applicant was convicted of various offences, including unlawful assault and committing an indictable offence while on bail.§ The applicant was granted further Bridging E visas on 5 May and 23 June 2023, also on departure grounds.§ Further arrest: [In] September 2023, the applicant appeared before the [Magistrates’ Court], charged with various offences, and was granted bail.§ Also [in] September 2023, ABF officers detained him under s.189 and transferred him to the Melbourne Immigration Detention Centre. At hearing, the applicant gave some further information about his circumstances in Australia, although it was difficult to establish a clear timeline. He said that he has a cousin in Australia, although his last contact with this person was in March 2023. The applicant indicated that they had had disagreements around the time that he had been intending to apply for a student visa (presumably late 2020), and that he (the applicant) had been reluctant to have contact with his relatives after his most recent criminal offending. During the course of the discussion, he said that he had been homeless for periods, and suffered mentally. With reference to the [Organisation]’s offers of help to him (including, he claims, to lodge a protection visa application), he said that he had lost his passport, his telephone and his passwords in recent times. He conveyed the impression that he was disorganised and lacked support while living in the community.Claims and evidence The Department and Tribunal files include the following relevant material.§ Bridging E visa application Form 1008 lodged on 24 November 2023, which includes additional information provided by the applicant concerning his health, and his wish to be released from immigration detention for medical treatment. § The delegate’s decision record of 29 November 2023, a copy of which the applicant submitted to the Tribunal.§ The application for review.§ A four-page undated statement from the applicant, sent to the Tribunal on 8 December 2023.§ Typed list recording the dates and times on which the applicant has tried to call the [Organisation], in the period from 4 December 2023 (1:00pm) and 6 December 2023.§ A copy of the applicant’s ‘client medical request form’, dated 7 December 2023, requesting International Health and Medical Services (IHMS) to provide his medical and clinical records urgently, for him to forward to the Tribunal. The Tribunal has not received any further material as of the date of this decision.

Evidence

Evidence Before The Court

During the course of the discussion, he said that he had been homeless for periods, and suffered mentally. With reference to the [Organisation]’s offers of help to him (including, he claims, to lodge a protection visa application), he said that he had lost his passport, his telephone and his passwords in recent times. He conveyed the impression that he was disorganised and lacked support while living in the community.Claims and evidence The Department and Tribunal files include the following relevant material.§ Bridging E visa application Form 1008 lodged on 24 November 2023, which includes additional information provided by the applicant concerning his health, and his wish to be released from immigration detention for medical treatment. § The delegate’s decision record of 29 November 2023, a copy of which the applicant submitted to the Tribunal.§ The application for review.§ A four-page undated statement from the applicant, sent to the Tribunal on 8 December 2023.§ Typed list recording the dates and times on which the applicant has tried to call the [Organisation], in the period from 4 December 2023 (1:00pm) and 6 December 2023.§ A copy of the applicant’s ‘client medical request form’, dated 7 December 2023, requesting International Health and Medical Services (IHMS) to provide his medical and clinical records urgently, for him to forward to the Tribunal. The Tribunal has not received any further material as of the date of this decision. The applicant appeared before the Tribunal to give evidence and present arguments, at a hearing held on 8 December 2023, at 1:30pm. The held was held via video link between Melbourne Immigration Transit Accommodation (MITA) where the applicant is in immigration detention, and the Tribunal’s Sydney office. The hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages, with the interpreter present in Sydney. In the pre-hearing letter and at hearing, the Tribunal alerted the applicant to his right not to give answers and provide material that might tend to incriminate him. On 6 December 2023, the Tribunal wrote to the applicant, setting out for him the issues expected to be covered at hearing and during the review (including questions about his mental health, the Department’s non-disclosure certificate, and the issues that arise in relation to the criteria for the bridging visa). The purpose of the letter was to assist the applicant, who is unrepresented, to address the relevant issues. The applicant told the Tribunal that he read the letter. A friend had helped him write the submission sent on 8 December 2023, and there was substantive discussion of these matters at the hearing. At the outset of the hearing, the Tribunal asked the applicant about his current health, including any issues that might affect the conduct of the hearing. He indicated that he continues to suffer anxiety and depression, and that IHMS is providing treatment (including medication for depression and psychosis), and that seems to be helping him. He did not raise any concerns about his ability to present his case, and the Tribunal did not observe anything to raise questions about this.Non-disclosure certificate

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.James SilvaMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.