2413228 (Migration) - [2024] AATA 1949

2413228 (Migration) [2024] AATA 1949 (3 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2413228

MEMBER:Alison Murphy
DATE:3 June 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 03 June 2024 at 2:41pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – applicant’s wife’s pregnancy preventing travel – lengthy periods of unlawful residence – obtaining a passport – failure to depart Australia on previous Bridging visas – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 359
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 17 May 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 was made on 22 May 2024 on the basis that on the basis that the applicant did not meet any of the alternative grounds for seeking the visa set out in cl 050.212.
The applicant appeared before the Tribunal on 30 May 2024 to give evidence and present arguments. The hearing was scheduled to take place by video, but the video conferencing equipment in the detention centre was not operational and so the hearing took place by telephone, with the assistance of an interpreter in the Malaysian and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
DOCUMENTS AND NON-DISCLOSURE DIRECTION
There were difficulties obtaining the relevant documents from the Department. As the documents provided by the Department to the Tribunal appeared not to be complete, requests for further documents were made by the Tribunal on 27 May 2024 and 28 May 2024 without substantive response. Another urgent request was made on 30 May 2024 and further documents were finally received on 31 May 2024.
The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s.376 of the Act by issuing a certificate dated 24 May 2024. That certificate purports to relate to the four…

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 2413228 (Migration)

Details

AGLC: 2413228 (Migration) [2024] AATA 1949
Case: [2024] AATA 1949
Decision Date: 3 June 2024

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa by a male applicant from Malaysia, who had been in Australia unlawfully for extended periods since his arrival in June 2015. The applicant sought to satisfy the criteria for the visa by demonstrating that he was making acceptable arrangements to depart Australia, citing his wife's pregnancy as a reason for the delay in departure and the need for specific documentation from Australia for her to register her pregnancy in Malaysia. The applicant also applied for a Subclass 051 (Bridging (Protection Visa Applicant)) visa, which was also refused.

The primary legal issue before the Tribunal was whether the applicant met the requirements of subclause 050.212(2) of the Migration Regulations 1994, which requires the applicant to be making, or be the subject of, acceptable arrangements to depart Australia. The Tribunal was also required to consider the genuineness of the applicant's intentions in making any such arrangements, drawing guidance from departmental guidelines and relevant case law. A secondary issue was whether the applicant met the criteria for a Subclass 051 Bridging (Protection Visa Applicant) visa.

The Tribunal affirmed the delegate's decision not to grant the Bridging E visa. It found that the applicant had not made acceptable arrangements to depart Australia, noting his lengthy periods of unlawful residence, his failure to present a travel ticket and valid passport to the Department as previously agreed, and his disengagement from the Department. The Tribunal also considered the applicant's stated intention to depart in June 2024, but found it unconvincing given his past conduct and the lack of concrete steps taken towards departure. Furthermore, the applicant did not meet the criteria for a Subclass 051 Bridging (Protection Visa Applicant) visa as he was not a relevant eligible non-citizen.

Orders

Orders of the court

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Background

Background to the litigation

The issue in this case is whether the applicant meets any of the grounds for the grant of the visa.BACKGROUND TO THE REVIEW The applicant is [an ae]-year-old male from Malaysia. He arrived in Australia in June 2015 as the holder of a visitor visa and has not departed since. At hearing he told me that prior to his detention he was living with his wife in [Town 1] and that she is one month pregnant. He applied for the current bridging visa on 17 May 2024.CONSIDERATION OF CLAIMS AND EVIDENCE 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. In this case, the applicant is seeking to meet cl 050.212(2) on the basis that he is making acceptable arrangements to depart Australia. For the reasons below, the applicant does not meet cl 050.212.Acceptable arrangements to depart Australia 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. ‘Acceptable arrangements’ is not defined in the Regulations. The Departmental guidelines (PAM3), whilst not binding on the Tribunal, nevertheless provide some guidance: Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]). The applicant stated at hearing that he wished to be granted the bridging visa so he could make arrangements to help his wife register her pregnancy with the hospital before they departed Australia together at the end of June 2024. He said it was his wife’s intention to deliver their child in Malaysia but that as a woman who became pregnant overseas she needed documents from Australia verifying her pregnancy. Departmental records indicate that the applicant’s visitor visa ceased on 2 September 2015 after which the applicant remained unlawfully in Australia until February 2017, when he was granted a bridging visa after making an application for a protection visa. The applicant’s protection visa application was refused in March 2017 and in August 2017 the associated bridging visa ceased and the applicant became an unlawful non-citizen for the second time. The applicant was later granted three further bridging visas in each of 2020, 2021 and 2022, with periods of unlawfulness in between the grant of those visas. The delegate’s decision records that on 27 April 2022 the applicant was granted a bridging visa for the purpose of making arrangements to depart Australia on the basis that he would present a travel ticket and valid passport to the Department. The delegate’s decision records that he did not do so, rather he disengaged from the Department and has still not made arrangements to obtain a passport. The Department’s movement records indicate that during the nine years the applicant has resided in Australia, he has only held a visa for approximately 11 months.

Evidence

Evidence Before The Court

He applied for the current bridging visa on 17 May 2024.CONSIDERATION OF CLAIMS AND EVIDENCE 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. In this case, the applicant is seeking to meet cl 050.212(2) on the basis that he is making acceptable arrangements to depart Australia. For the reasons below, the applicant does not meet cl 050.212.Acceptable arrangements to depart Australia 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. ‘Acceptable arrangements’ is not defined in the Regulations. The Departmental guidelines (PAM3), whilst not binding on the Tribunal, nevertheless provide some guidance: Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]). The applicant stated at hearing that he wished to be granted the bridging visa so he could make arrangements to help his wife register her pregnancy with the hospital before they departed Australia together at the end of June 2024. He said it was his wife’s intention to deliver their child in Malaysia but that as a woman who became pregnant overseas she needed documents from Australia verifying her pregnancy. Departmental records indicate that the applicant’s visitor visa ceased on 2 September 2015 after which the applicant remained unlawfully in Australia until February 2017, when he was granted a bridging visa after making an application for a protection visa. The applicant’s protection visa application was refused in March 2017 and in August 2017 the associated bridging visa ceased and the applicant became an unlawful non-citizen for the second time. The applicant was later granted three further bridging visas in each of 2020, 2021 and 2022, with periods of unlawfulness in between the grant of those visas. The delegate’s decision records that on 27 April 2022 the applicant was granted a bridging visa for the purpose of making arrangements to depart Australia on the basis that he would present a travel ticket and valid passport to the Department. The delegate’s decision records that he did not do so, rather he disengaged from the Department and has still not made arrangements to obtain a passport. The Department’s movement records indicate that during the nine years the applicant has resided in Australia, he has only held a visa for approximately 11 months. When I discussed the above matters with the applicant at the hearing, he did not dispute his visa history. He agreed that he had still not obtained a valid passport but said the Department was processing his temporary passport. He gave evidence that he did not depart Australia in April 2022 because he had COVID but maintained that it is his intention to depart in June 2024. He acknowledged that he had lived and worked in Australia without a visa in the past but said that he could no longer get work without a visa and he had not had a job in 2 months. He said he has not purchased an air ticket to return to Malaysia because his wife’s condition prevents him from doing so at present.

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.Alison MurphyMember

Ratio Decidendi

Legal Principle Established

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