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

1. 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.

2. 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.

3. 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.

4. The applicant appeared before the Tribunal on 26 July 2024 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant gave the Tribunal a copy of the delegates decision with his application for review.

7. 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.  

8. 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

9. 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.

10. 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.

11. For the reasons below, the applicant meets cl 050.212.

    Acceptable arrangements to depart Australia

12. 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]).

13. 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.

14. 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.

15. 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

16. 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.

17. ‘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.

18. The applicant told the Tribunal he had spoken to his case manager who told him to apply for this bridging visa so he could apply for a different visa. He did not know what visa he would apply for and is waiting for his previous sponsor, [Mr A] of [Business 1] in [Suburb 1], NSW to lodge a sponsorship nomination. He does not know if [Mr A] has lodged a nomination application. The applicant said he had qualifications of a Certificate III in [Subject 1] and intended to apply for a skilled nomination visa. The applicant told the Tribunal he finished working for [Mr A] previously in October 2023 when he became addicted to drugs and becoming imprisoned.

19. The applicant told the Tribunal he contacted [Mr A] last week. The applicant’s description of his contact with [Mr A] was hesitant and unconvincing. The applicant could not provide the contact details for [Mr A], and could not give a day or date that [Mr A] was contacted. The applicant provided no evidence to support his submission [Mr A] would lodge a nomination sponsorship for him.

20. The Tribunal explained to the applicant most, if not all, Australian visas require there is no adverse information known to the Minister. The Tribunal briefly explained that criminal convictions are generally considered adverse information but that adverse information could be disregarded if it is considered reasonable to do so. The applicant could not articulate any reasons to disregard his criminal convictions as adverse information if he applied for a visa, other than he wanted to obtain work experience and training before he departed Australia.

21. The Tribunal finds that the applicant has not made a valid application for a substantive visa. Further the Tribunal is not satisfied that the applicant would apply for a substantive visa that can be granted in Australia within a reasonable period if he held a bridging visa.

22. Accordingly, the applicant does not meet cl 050.212(3).

    Whether the applicant continues to satisfy the time of application criteria - cl 050.221

23. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl 050.211 and 050.212 at the time of decision.

24. The Tribunal explained to the applicant that whether he is making, or is the subject of, acceptable arrangements to depart Australia, at the time of the Tribunal’s decision is a determinative issue for his application.

25. The applicant said he had seen his case manager while in detention and had been advised to apply for a different visa. The applicant said he was waiting to see if his previous sponsor would apply for a skilled nomination sponsorship for him, but did not know the visa for which he would apply. The applicant said he had not made arrangements to depart Australia.

26. The Tribunal finds on the applicant’s evidence that he has not made arrangements to depart Australia. Additionally Tribunal is not satisfied that the applicant has made contact with his previous sponsor in a genuine attempt to open a visa pathway for him and so continues to be the subject of acceptable arrangements to depart Australia.

27. The Tribunal finds that at the time of decision, the applicant does not continue to satisfy cl 050.212(2) and therefore does not meet cl 050.221.

28. Given the above findings it is not necessary for the Tribunal to consider whether the applicant would abide by conditions that would be applied to the visa.

29. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

30. 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

31. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

    P. Maishman
    Member