2402083 (Migration) - [2024] AATA 258

2402083 (Migration) [2024] AATA 258 (15 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2402083

MEMBER:Sean Baker
DATE:15 February 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 15 February 2024 at 12:06pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – immigration history – criminal convictions – failure to depart Australia – failure to attend parole appointment – several AVO breaches – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 48, 73
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 051.211
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 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 2 February 2024. 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.
The decision to refuse to grant the visa was made on 7 February 2024 on the basis that there was no evidence that the applicant was making acceptable arrangements to depart nor was there information that he met any of the other grounds on which the visa may be granted under cl 050.212.The applicant appeared before the Tribunal on 14 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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 there is a ground for the applicant to be granted the visa.
In his application for the visa the applicant indicated that he was applying for the bridging visa on the basis that he wished to apply for a substantive visa, being an employer sponsored visa. In submissions made to the delegate the applicant stated:
·     He came to Australia as a student, but he is now an Australian refugee.
·     He has developed serious mental illness which has affected all aspects of his life. He has been physically and psychologically ill and at times unemployed.
·     He neglected to apply for a further visa, which he regrets.
·     He…

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 2402083 (Migration)

Details

AGLC: 2402083 (Migration) [2024] AATA 258
Case: [2024] AATA 258
Decision Date: 15 February 2024

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa, Subclass 050, heard by Member Sean Baker of the Administrative Appeals Tribunal. The applicant sought the visa to maintain lawful status in Australia while pursuing applications for substantive visas, including an employer-sponsored visa, a spouse visa, or a family visa. The core of the dispute revolved around whether the applicant met the criteria for the grant of the bridging visa, particularly in light of his immigration history and stated intentions.

The primary legal issue before the Tribunal was to determine if the applicant was eligible for the Bridging E visa. This involved assessing whether the applicant's stated reasons for seeking the visa, including his desire to apply for other substantive visas and his claims of serious mental illness, satisfied the requirements for its grant. The Tribunal also considered the applicant's submissions regarding his personal circumstances, including his history in Australia, his mental health condition, and his stated intention to depart Australia voluntarily if other visa options failed.

The Tribunal affirmed the delegate's decision not to grant the Bridging E visa. Member Baker found that the applicant did not meet the eligibility requirements for the visa. While acknowledging the applicant's submissions concerning his mental health and his desire to remain in Australia, the Tribunal concluded that these factors did not overcome the failure to meet the specific criteria for the Bridging E visa. The Tribunal also noted that the application included a request for a Subclass 051 (Bridging (Protection Visa Applicant)) visa, but the applicant was not an eligible non-citizen under the relevant regulation for that visa either.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 there is a ground for the applicant to be granted the visa. In his application for the visa the applicant indicated that he was applying for the bridging visa on the basis that he wished to apply for a substantive visa, being an employer sponsored visa. In submissions made to the delegate the applicant stated:· He came to Australia as a student, but he is now an Australian refugee.· He has developed serious mental illness which has affected all aspects of his life. He has been physically and psychologically ill and at times unemployed.· He neglected to apply for a further visa, which he regrets.· He seeks to apply for a spouse visa, family visa, or an employer visa, and a bridging visa.· Other visas are temporarily unavailable so he is choosing a bridging visa, which will allow him to be lawful in Australia and accelerate his recover from illness.· He became mentally ill in 2020 and has not stopped treatment since then. The bridging visa will act as a link connecting him to health.· He wishes to stay in Australia all his life. Fate has conspired against him.· He has no relatives in China, the bridging visa will determine his choice of life and death.· After the bridging visa expires, he will continue to apply for other visas to remain lawful. If other visa channels fail he will buy his own ticket and return to China. He will do this in preference to being returned against his will which would severely aggravate his mental illness. After the refusal of the bridging visa, the applicant provided submissions to the Department along the same lines as the above. The applicant has provided several submissions and documents to the Tribunal. These make the same points as his prior submissions to the Department. They include materials which go to his time in Australia but not to the issue in dispute. He has also provided a copy of the delegate’s decision to the Tribunal. The day prior to the hearing, the applicant sent in a submission which was received by the Tribunal on the day of the hearing. This document lays out the applicants mental health illness history. The applicant states that he is suffering from schizophrenia, that he has auditory and visual hallucinations and nightmares and alternating current sounds during the day. He suffers loss of appetite, general weakness, psychological fragility and mental pain. He described his symptoms and the effects they had had on him. The applicant has claimed to have a serious mental illness. At the beginning of the hearing, I noted this and noted that any reasonable adjustments could be made to the hearing. The applicant indicated and I observed that he was able to follow what was happening and responded cogently and coherently to the questions asked, sought clarification and asked follow up questions. I consider that the applicant had capacity and was able to fully engage at the hearing and in the review more broadly.

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.Sean BakerMember

Ratio Decidendi

Legal Principle Established

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