2429454 (Migration) - [2024] AATA 3172

2429454 (Migration) [2024] AATA 3172 (30 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Ms Yick Yau
CASE NUMBER: 2429454

MEMBER:Anne Grant
DATE:30 August 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 30 August 2024 at 11:07am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – lengthy stay in Australia – period of unlawful residence and employment – upcoming criminal hearings – protection application – family capacity to financially assist – decision under review affirmed
LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.221, 051.211; r 2.20
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 16 August 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 which contains several subclauses, one of which an applicant must meet.
The decision to refuse to grant the was made on 21 August 2024 on the basis that the delegate found that the visa applicant did not meet any of the subclauses of clause 050.212. In particular, the delegate found that the visa applicant did not satisfy subclause 050.212(2) on which he sought to rely, because he was not making, and was not the subject of acceptable arrangements to depart Australia. The delegate also found that none of the other subclauses applied. Because the applicant did not satisfy any of the subclauses in cl 050.212, the delegate did not consider the other criteria and refused the visa. The delegate also found that the visa applicant did not satisfy the criteria for a subclass 051 visa.
The applicant appeared before the Tribunal on 29 August 2024. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the matter, and the representative attended the hearing and made submissions addressing the applicant’s arrangements to depart and his circumstances generally.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant…

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 2429454 (Migration)

Details

AGLC: 2429454 (Migration) [2024] AATA 3172
Case: [2024] AATA 3172
Decision Date: 30 August 2024

CaseChat Overview and Summary

The applicant sought review of a decision not to grant a Bridging E (Class WE) visa, and also applied for a Bridging (Protection Visa Applicant) visa (Subclass 051). The applicant had a complex migration history, including a lengthy period of unlawful residence and employment in Australia, and had previously applied for a protection visa which was refused and subsequently dismissed by the Tribunal on review due to the applicant's failure to appear at a hearing. The applicant's last bridging visa ceased in June 2024, and he had been in immigration detention since August 2024.

The primary legal issues before the Tribunal were whether the applicant satisfied the criteria for the grant of a subclass 050 Bridging E visa, and if not, whether he satisfied the criteria for a subclass 051 Bridging (Protection Visa Applicant) visa. Specifically, for the subclass 050 visa, the Tribunal had to determine if the applicant was making, or was the subject of, acceptable arrangements to depart Australia, as required by subclause 050.211(2) and continued under cl 050.221.

The Tribunal found that the applicant met the initial criteria for a subclass 050 visa as he was an unlawful non-citizen at the time of application and decision. However, the Tribunal determined that the applicant did not satisfy the criterion under cl 050.212(2) concerning acceptable arrangements to depart Australia. While the applicant relied on upcoming criminal hearings as the basis for his application, the Tribunal, referencing departmental guidelines and case law such as *Chen* and *Lin*, considered whether the arrangements were genuine and acceptable. The Tribunal concluded that the applicant had not demonstrated acceptable arrangements to depart Australia. Furthermore, the applicant did not meet the requirements for a subclass 051 visa as he was not a relevant eligible non-citizen under cl 051.211.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa and also found that the applicant did not meet the requirements for a Bridging (Protection Visa Applicant) 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 confirmed at hearing that his migration history is as follows:·He arrived in Australia [in] February 2017 as a visitor on an electronic travel authority. He held no visa between 19 August 2017 and 25 June 2018. He has held bridging visas in the past, whilst his application for a protection visa was being considered and reviewed.·He applied for a protection visa on 6 June 2018. The visa was refused on 29 May 2019. He sought review by this Tribunal. On 22 May 2024, his application for review was dismissed by the Tribunal after the applicant failed to appear at a hearing listed on 6 May 2024. He has not lodged an application for judicial review of that decision. ·His last bridging visa ceased on 26 June 2024. He has not held a valid visa since then and was detained in immigration detention after being located by Victoria Police [in] August 2024. The issue in this case is whether the applicant satisfies the criteria for the grant of a subclass 050 visa and if not, whether he satisfies the criteria for a subclass 051 visa. Cl 050.211 Clause 050.211 is met if, at the time of application: (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and (2)the applicant was not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). The applicant must continue to satisfy this criterion at the time of decision: cl 050.221. The applicant’s previous bridging visa ceased on 26 June 2024. At the time of applying for this visa, he was an unlawful non-citizen. He continues to be an unlawful non-citizen at the time of making this decision. Cl 050.211 is met. 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 applicant is seeking to meet cl 050.212(2). The applicant does not claim to meet any of the other alternative criteria in cl 050.212. 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]). In the application for the visa, the applicant relied on this ground. He specifically requested the visa to stay in Australia so that he could attend upcoming criminal hearings, which were listed [in] August 2024 in [Town 1], [in] August 2024 in [Town 2], and [in] September 2024 in [Town 3].

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.Anne GrantMember

Ratio Decidendi

Legal Principle Established

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