2436172 (Migration) - [2024] AATA 3998

2436172 (Migration) [2024] AATA 3998 (9 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2436172

MEMBER:Rachel Da Costa
DATE:9 October 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 9 October 2024 at 9:58am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – arrangements to depart Australia – applicant convicted of several offences – request for Ministerial Intervention – period of unlawful residence – valid passport – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 46, 48, 73, 85, 195, 351, 417
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
MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to sections 378 and 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 24 September 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(2)-(9).
The decision to refuse to grant the visa was made on 27 September 2024 on the basis that the applicant did not meet the requirements in cl 050.212, cl 050.221 or cl 051.211 of Schedule 2 to the Regulations. The applicant provided a copy of the delegate’s decision to the Tribunal.
The applicant appeared before the Tribunal on 8 October 2024 to give evidence and present arguments. The applicant is currently residing in [a named] Detention Centre and the hearing was conducted using the Microsoft Teams videoconference platform. The applicant speaks fluent English and did not require the assistance of an interpreter.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
Based on the information contained in the delegate’s decision, information on the Department file and evidence provided by the applicant in the hearing, the applicant’s relevant background is as follows.
The applicant was born in Sri Lanka and arrived in Australia in August 2012 by boat when he was [age] years old. In very brief terms, the applicant claims that his mother sent him to Australia for his safety after he was a witness to his father’s murder in 2011 by the Sri Lankan…

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 2436172 (Migration)

Details

AGLC: 2436172 (Migration) [2024] AATA 3998
Case: [2024] AATA 3998
Decision Date: 9 October 2024

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa by an applicant who arrived in Australia in 2012 and subsequently became an unlawful non-citizen after his Safe Haven Enterprise Visa was refused and his appeals were unsuccessful. The applicant had also been convicted of several offences and served a three-year prison sentence, after which he was taken into immigration detention. The applicant sought the Bridging E visa on the basis of Ministerial intervention, providing statements from his mother and a Member of Parliament in Sri Lanka regarding his fear of returning to his home country. The Tribunal was required to determine whether the applicant met the criteria for the grant of a Bridging E visa under clause 050.212 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant satisfied any of the grounds specified in clauses 050.212(2) to (9) for the grant of a Bridging E visa, particularly in relation to his claim for Ministerial intervention. The Tribunal also considered whether the applicant met the criteria under clause 050.211 regarding his immigration status, and whether he continued to satisfy the relevant criteria at the time of the decision as required by clause 050.221. The Tribunal examined subclauses 050.212(5B) and 050.212(6), which relate to requests for Ministerial intervention under sections 48B, 345, 351, or 417 of the Migration Act 1958.

The Tribunal found that the applicant met clause 050.211 as he was an unlawful non-citizen at the time of application and decision, and was not an eligible non-citizen of a kind excluded by subregulation 2.20. However, the Tribunal was not satisfied that the applicant had made, or that there had previously been in relation to him, a request for Ministerial intervention of the types specified in subclauses 050.212(5B) and 050.212(6). This conclusion was based on the applicant's evidence that he had made past attempts to seek Ministerial intervention by post without response, and the Department's records showing no ongoing requests. Consequently, the Tribunal determined that the applicant did not meet the grounds for Ministerial intervention under clause 050.212. The Tribunal also considered, but did not find met, clause 050.212(2) concerning arrangements to depart Australia. The Tribunal affirmed the decision not to grant the applicant a Bridging E visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background Based on the information contained in the delegate’s decision, information on the Department file and evidence provided by the applicant in the hearing, the applicant’s relevant background is as follows. The applicant was born in Sri Lanka and arrived in Australia in August 2012 by boat when he was [age] years old. In very brief terms, the applicant claims that his mother sent him to Australia for his safety after he was a witness to his father’s murder in 2011 by the Sri Lankan Army due to his father’s connection to the Liberation Tigers of Tamil Eelam (LTTE). Since being in Australia, the applicant has applied for permanent Protection visa (class XA) (the application for which was determined to be invalid) and for a Safe Haven Enterprise Visa (class XE) which was refused in May 2020. The applicant unsuccessfully sought review of this refusal in the Tribunal and the courts. In September 2020, the applicant was convicted of a number of offences and spent three years in prison. Upon being released from prison in January 2023, the applicant was taken into immigration detention where he remains. The applicant’s most recent Bridging E visa ceased when he was released from criminal custody and since that time he has been an unlawful non-citizen. The applicant is subject to s 46A, s 48A and s 195 of the Act. Prior to the Tribunal hearing, the applicant provided copies of the following documents, along with the delegate’s decision:· a written statement dated 10 August 2022 explaining why it is not safe for him to return to Sri Lanka and requesting the Australian Government’s help;· English translations of two written statements from his mother in Sri Lanka dated 1 March 2023 and one undated, both of which explain why she fears for her son’s safety if he returns to Sri Lanka;· letter dated 23 March 2023 from [Parliamentarian A], Member of Parliament for the [named] District, Sri Lanka, explaining why it would not be safe for the applicant to return to Sri Lanka;· extract and English translation from the Information Book of [Town 1] Police Station dated 15 October 2021 referring to an incident when some people came to the house of the applicant’s mother looking for the applicant and making threats. As discussed with the applicant in the hearing, it appears that these documents relate to the reasons the applicant claims to fear harm if he returns to Sri Lanka and they are not directly relevant to the issue the Tribunal has to determine in relation to the applicant’s Bridging visa E application.CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS The issue in this case is whether the applicant meets any of the criteria in cl 050.212(2) – (9).Immigration status of the applicant – cl 050.211 Clause 050.211 is met if, at the time of application:(1) The applicant is:(a) an unlawful non‑citizen; or(b) the holder of a Bridging E (Class WE) visa; or(c) the holder of a Subclass 041 (Bridging (Non‑applicant)) visa.(2) The applicant is not an eligible non‑citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17).

Evidence

Evidence Before The Court

As discussed with the applicant in the hearing, it appears that these documents relate to the reasons the applicant claims to fear harm if he returns to Sri Lanka and they are not directly relevant to the issue the Tribunal has to determine in relation to the applicant’s Bridging visa E application.CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS The issue in this case is whether the applicant meets any of the criteria in cl 050.212(2) – (9).Immigration status of the applicant – cl 050.211 Clause 050.211 is met if, at the time of application:(1) The applicant is:(a) an unlawful non‑citizen; or(b) the holder of a Bridging E (Class WE) visa; or(c) the holder of a Subclass 041 (Bridging (Non‑applicant)) visa.(2) The applicant is not an eligible non‑citizen of the kind set out in subregulation 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. At the time of application, the applicant was an unlawful non-citizen. As at the time of decision, he remains an unlawful non-citizen. Accordingly, he meets cl 050.211(1). The Tribunal is satisfied that the applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17). Therefore, the applicant meets cl 050.211(2). Therefore, the applicant meets cl 050.211.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 his Application for a Bridging visa E form, the applicant selected the reason for applying for a Bridging visa E that is most appropriate to his circumstances as ‘Ministerial intervention’. The subclauses relating to Ministerial intervention are subclauses 050.212(5B), (6), (6AA) and (6B). The applicant does not claim to meet any of the other alternative criteria in cl 050.212, although the Tribunal has considered whether he also meets cl 050.212(2) on the basis that he is making, or is the subject of, acceptable arrangements to depart Australia. For the reasons set out below, the applicant does not meet cl 050.212.Ministerial intervention The Tribunal has considered whether the applicant meets any of the subclauses which relate to Ministerial intervention. Subclause 050.212(5B) is met if the applicant is a person to whom s 48A of the Act applies, and the applicant has made a request to the Minister to determine under s 48B that s 48A does not apply. There must not have previously been such a request under s 48B in relation to the applicant, or a request to the Minister for the exercise of the Minister’s power under ss 345, 351 or 417 of the Act. Subclause 050.212(6) is met if the applicant is the subject of a decision that relates to a visa application made in Australia, or a visa cancellation and has made a request to the Minister to substitute a more favourable decision under ss 345, 351 or 417 of the Act. The decision in question must be a decision for which the Minister has the power to substitute a decision under ss 345, 351 or 417, and there must not have previously been such a request, or a request for a determination under s 48B 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.Rachel Da CostaMember

Ratio Decidendi

Legal Principle Established

The issue in this case is whether the applicant meets any of the criteria in cl 050.212(2) – (9).Immigration status of the applicant – cl 050.211 Clause 050.211 is met if, at the time of application:(1) The applicant is:(a) an unlawful non‑citizen; or(b) the holder of a Bridging E (Class WE) visa; or(c) the holder of a Subclass 041 (Bridging (Non‑applicant)) visa.(2) The applicant is not an eligible non‑citizen of the kind set out in subregulation 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. At the time of application, the applicant was an unlawful non-citizen. As at the time of decision, he remains an unlawful non-citizen. Accordingly, he meets cl 050.211(1). The Tribunal is satisfied that the applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17). Therefore, the applicant meets cl 050.211(2). Therefore, the applicant meets cl 050.211.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 his Application for a Bridging visa E form, the applicant selected the reason for applying for a Bridging visa E that is most appropriate to his circumstances as ‘Ministerial intervention’. The subclauses relating to Ministerial intervention are subclauses 050.212(5B), (6), (6AA) and (6B). The applicant does not claim to meet any of the other alternative criteria in cl 050.212, although the Tribunal has considered whether he also meets cl 050.212(2) on the basis that he is making, or is the subject of, acceptable arrangements to depart Australia. For the reasons set out below, the applicant does not meet cl 050.212.Ministerial intervention The Tribunal has considered whether the applicant meets any of the subclauses which relate to Ministerial intervention. Subclause 050.212(5B) is met if the applicant is a person to whom s 48A of the Act applies, and the applicant has made a request to the Minister to determine under s 48B that s 48A does not apply. There must not have previously been such a request under s 48B in relation to the applicant, or a request to the Minister for the exercise of the Minister’s power under ss 345, 351 or 417 of the Act. Subclause 050.212(6) is met if the applicant is the subject of a decision that relates to a visa application made in Australia, or a visa cancellation and has made a request to the Minister to substitute a more favourable decision under ss 345, 351 or 417 of the Act. The decision in question must be a decision for which the Minister has the power to substitute a decision under ss 345, 351 or 417, and there must not have previously been such a request, or a request for a determination under s 48B of the Act. _ While the evidence indicates that s 48A of the Act applies to the applicant, in the hearing, the applicant gave evidence that he has no visa applications or other immigration matters, including requests for Ministerial intervention, currently on foot apart from his Bridging E visa application. The applicant gave evidence that he had twice attempted to make a request for Ministerial intervention in the past by post in 2021 or 2022 when he was in prison. The applicant has not provided further detail about the basis of these requests but he told the Tribunal he never received a response. The delegate’s decision notes there is no record in Departmental systems of an ongoing request for Ministerial intervention by the applicant and the Tribunal accepts this. Based on the evidence before it, including the fact that the applicant never received a response from the Department and the Department has no record of ongoing Ministerial intervention requests, the Tribunal is not satisfied that the applicant has made, or that there has previously been in relation to the applicant, a request for Ministerial intervention of the types referred to in subclauses 050.212(5B) and 050.212(6). The Tribunal finds that subclauses 050.212(5B) and 050.212(6) are not met by the applicant.