2420112 (Migration) - [2024] AATA 2809

2420112 (Migration) [2024] AATA 2809 (4 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2420112

MEMBER:Lilly Mojsin
DATE:4 July 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 04 July 2024 at 11:56am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – compliance with conditions and acceptable arrangements to leave – significant periods as unlawful non-citizen, unsuccessful application for protection visa and immigration detention – no visa or court applications in progress – no application for new passport or travel plans – need to recover business investment in person – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73, 189
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212(2), 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 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) and a decision made by an authorised officer relating to requiring a security under s 269 of the Act.
The applicant, who is a male citizen of Malaysia, applied for the visa on 24 June 2024. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present review, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, set out in Part 050 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria includes cl 050.223, which concerns compliance with visa conditions.
The decision to refuse to grant the visa was made on 27June 2024 as the delegate was not satisfied the applicant was making acceptable arrangements to leave Australia.
The applicant appeared before the Tribunal on 4 July 2024, via video, from Villawood Detention Centre to give evidence and present arguments. The applicant utilised the services of an interpreter in the Mandarin language.
The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that he could hear and see the Tribunal Member. The Tribunal was able to interact with the applicant and interpreter and was able to maintain line of sight and appropriate communication throughout the proceedings.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s migration history is as follows:
·On 2 May 2006, the applicant lodged an application for an Electronic Travel Authority (class UD) (subclass 976) visa (UD 976) which was granted on the same day, permitting him to stay in Australia for 3…

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 2420112 (Migration)

Details

AGLC: 2420112 (Migration) [2024] AATA 2809
Case: [2024] AATA 2809
Decision Date: 4 July 2024

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa (subclass 050) by a person who had been in Australia unlawfully for a significant period. The applicant had a complex migration history, including multiple unsuccessful applications for a Permanent Protection visa and periods of immigration detention. The decision reviewed was made by the Refugee Review Tribunal (RRT).

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for the grant of a Bridging E visa, specifically clause 050.212(2) of the Migration Regulations 1994. This clause requires an applicant to satisfy the Minister that they have made acceptable arrangements to depart from Australia or that there is a compelling reason for them to remain in Australia.

The Tribunal considered the applicant's extensive period as an unlawful non-citizen, exceeding 11 years immediately prior to his detention. It noted that the applicant had no visa applications or court proceedings in progress, nor had he applied for a new passport or made any concrete travel plans. While the applicant cited reasons for not departing earlier, including business matters, debt issues, and personal arrangements, the Tribunal found these did not constitute compelling reasons to remain in Australia under the relevant visa criteria. The Tribunal concluded that the applicant had not demonstrated that he had made acceptable arrangements to depart Australia.

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 Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that he could hear and see the Tribunal Member. The Tribunal was able to interact with the applicant and interpreter and was able to maintain line of sight and appropriate communication throughout the proceedings. CONSIDERATION OF CLAIMS AND EVIDENCE The applicant’s migration history is as follows:·On 2 May 2006, the applicant lodged an application for an Electronic Travel Authority (class UD) (subclass 976) visa (UD 976) which was granted on the same day, permitting him to stay in Australia for 3 months after arrival.·[In] May 2006, the applicant arrived in Australia and has not departed since. On 20 August 2006, the applicant’s visa ceased.·On 21 August 2006, the applicant became an Unlawful Non-Citizen (UNC) for over 6 years until 16 October 2012.·On 15 October 2012, the applicant lodged an application for a Permanent Protection (class XA) visa (PV ) and on 16 October 2012 the applicant was a granted a Bridging C (class WC) (subclass 030) visa (BVC) in association with this application. ·On 22 November 2012, the applicant’s PV application was determined to be invalid and subsequently his associated BVC ceased on 31 December 2012.·On 1 January 2013, the applicant became UNC for 7 Days until 08 January 2013.·On 8 January 2013, the applicant lodged a further PV application and on the same date was granted a BVC in association to this application. On 25 January 2013, the PV application was refused. ·On 4 February 2013, the applicant lodged an application for a further BVC, which was granted on 5 February 2013. ·On 21 February 2013, the applicant appealed the Department refusal to then Refugee Review Tribunal[1] (RRT). On 16 April 2013, the RRT [differently constituted] affirmed the decision to refuse the application and subsequently the associated BVC ceased on 24 May 2013.·On 25 May 2013, the applicant became and remained UNC for over 11 years.·On 22 June 2024, the applicant was located by Australian Border Force (ABF) officers and detained under s189 of the Act. Tribunal hearing held on 4 July 2024[1] RRT 1302682 At the Tribunal hearing the applicant confirmed his migration history, as detailed above. He stated that he is not married and he does not have any children. His family are all in Malaysia. The applicant confirmed that he had not made any application for any other visa and he did not have any outstanding appeals before the courts. He stated that he had intended to apply for a bridging visa before he was detained by Border Force but had not done so. He had prepared an application for a new passport but had not submitted it. He also had intended to take a trip around Australia before he left Australia for good. The applicant told the Tribunal that he did not return to Malaysia earlier because there are still some things he has to attend to, he has debt issues and arguments with his business partner. He also needs to get out of the lease with his partner, [Ms A], who he lives with and sell the car.

Decision

Reasons for decision

Therefore, the applicant does not satisfy cl 050.212(2). DECISION The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.Lilly MojsinMember

Ratio Decidendi

Legal Principle Established

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