2424058 (Migration) - [2024] AATA 2951

2424058 (Migration) [2024] AATA 2951 (29 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2424058
MEMBER:P. Maishman
DATE:29 July 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 29 July 2024 at 4:01pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – substantive visa application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73, 269
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 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) and a decision made by an authorised officer relating to requiring a security under s 269 of the Act.
The applicant applied for the visa on 17 July 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 and cl 050.223.
The decision to refuse to grant the visa and the decision relating to requiring a security was made on 19 July 2024 on the basis that the delegate was not satisfied the applicant would comply with conditions that would be imposed on the visa even if a security were obtained.
The applicant appeared before the Tribunal on 26 July 2024 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant gave the Tribunal a copy of the delegates decision with his application for review.
At hearing the applicant told the Tribunal he had made no arrangements to depart Australia. Since being detained he has tried to contact his previous sponsor [Mr A], of [Business 1] in [Suburb 1], to make a sponsorship nomination so he could apply for another Training (Subclass 407) visa.
The issue in this case is whether the applicant meets a ground for seeking the visa, and if so whether he will abide by the conditions that would apply to the visa.
The grounds for seeking the visa - cl 050.212
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…

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 2424058 (Migration)

Details

AGLC: 2424058 (Migration) [2024] AATA 2951
Case: [2024] AATA 2951
Decision Date: 29 July 2024

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse a Bridging E (Class WE) visa. The applicant sought review of this decision before the Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for the grant of the Bridging E visa, specifically under subclauses 050.212(2) and 050.212(3) of the relevant regulations, and whether the applicant would abide by the conditions of the visa. The Tribunal was required to determine if the applicant had made, or was the subject of, acceptable arrangements to depart Australia, and if the applicant had made, or would make, a valid application for a substantive visa.

The Tribunal considered the applicant's submissions that he had attempted to contact a previous sponsor to facilitate an application for a Training (Subclass 407) visa. While acknowledging that the applicant had not made concrete arrangements to depart Australia at the time of his application, the Tribunal found that the applicant's intention to seek out visa options constituted acceptable arrangements to depart Australia prior to his departure. Consequently, the Tribunal was satisfied that the applicant met the criterion under subclause 050.212(2). However, the Tribunal also noted that the applicant was not a relevant eligible non-citizen for a Subclass 051 (Bridging (Protection Visa Applicant)) visa, which was also applied for.

The Tribunal affirmed the delegate's 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

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant gave the Tribunal a copy of the delegates decision with his application for review. At hearing the applicant told the Tribunal he had made no arrangements to depart Australia. Since being detained he has tried to contact his previous sponsor [Mr A], of [Business 1] in [Suburb 1], to make a sponsorship nomination so he could apply for another Training (Subclass 407) visa. The issue in this case is whether the applicant meets a ground for seeking the visa, and if so whether he will abide by the conditions that would apply to the visa.The grounds for seeking the visa - cl 050.212 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 delegate accepted the applicant meets cl 050.212(2). In the alternative the applicant is seeking to meet cl 050.212(3). The applicant does not claim to meet any of the other alternative criteria in cl 050.212. For the reasons below, the applicant meets 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 told the Tribunal he told the delegate he would make arrangements to depart Australia if he was unable to obtain a bridging visa. The applicant confirmed that at the time of his application he intended to seek out visa options. While there is no evidence before the Tribunal that at the time of application the applicant was making arrangements to depart Australia, the Tribunal finds the applicant’s intention to seek out visa options were acceptable arrangements prior to him departing Australia. For these reasons, the Tribunal is satisfied that at the time of application the applicant was the subject of acceptable arrangements to depart Australia. Therefore the applicant meets cl 050.212(2).Substantive visa application 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. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s 5(1) of the Act. 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: s 5(9) of the Act.

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.P. MaishmanMember

Ratio Decidendi

Legal Principle Established

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