2438992 (Migration) - [2024] ARTA 820

2438992 (MIGRATION) [2024] ARTA 820 (23 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Home Affairs
Tribunal Number:  2438992
Tribunal:General Member S Durvasula
Place:Sydney
Date:  23 October 2024
Decision:The Tribunal affirms the decision under review.

Statement made on 23 October 2024 at 10:10am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – the deemed grant of a bridging visa to the applicant – applicant was not in immigration detention when he made the application for a bridging visa – was not making any plans to depart Australia – criminal charges – pending court case – the applicant had not made an application for a substantive visa which had not been finally determined – was on bail awaiting trial both at the time of application and decision – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 189
Migration Regulations 1994, Schedule 2, r 2.24, cl 050.212
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 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 23 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), cl 050.212(3) and cl 050.212(7).
The decision to refuse to grant the visa was made on 16 October 2024 on the basis that the applicant did not meet any of the grounds for seeking a bridging visa in cl 050.212. In particular the delegate was not satisfied the applicant did not meet cl 050.212(2). This requires that the applicant is making, or is the subject of, acceptable arrangements to depart Australia at the time of application.
The applicant appeared before the Tribunal via video link on 22 October 2024 to give evidence and present arguments. 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 review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether:
· the applicant is making, or is the subject of, acceptable arrangements to depart Australia at the time of application (cl 050.212(2)) and at the time of decision (cl 050.221); or
· the applicant has made a valid application for a substantive visa that has not…

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.

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Details

AGLC: 2438992 (Migration) [2024] ARTA 820
Case: [2024] ARTA 820
Decision Date: 23 October 2024

CaseChat Overview and Summary

The applicant, a non-citizen who has been in Australia on multiple occasions, applied for a Bridging E (Class WE) visa to allow him to remain in the country temporarily while he awaited the outcome of a substantive visa application. The Administrative Review Tribunal (ART) was tasked with reviewing the decision by the delegate to refuse this visa. The central issues before the Tribunal were whether the applicant had acceptable arrangements to depart Australia, had made a valid application for a substantive visa that had not been finally determined, or was in criminal detention at the relevant times.

The Tribunal considered the applicant's immigration history, which showed multiple entries into Australia on temporary visas, and the fact that he had applied for a protection visa on 5 December 2018, which was ultimately refused. The Tribunal also took into account the applicant's criminal charges in Queensland and the bail conditions imposed by the courts, which restricted his ability to leave the country. The applicant's statement that he was applying for a bridging visa to depart Australia with a proposed departure date of 30 September 2024 was also reviewed. The Tribunal concluded that the decision not to grant the Bridging E visa should be affirmed because the applicant did not meet the criteria for any of the specified exceptions, as he was not making acceptable arrangements to depart Australia, had not made a valid application for a substantive visa that had not been finally determined, and was not in criminal detention at the relevant times.

The Tribunal found that the applicant's bail conditions effectively prevented him from leaving the country, which undermined his claim that he had acceptable arrangements to depart. Additionally, the applicant's previous Bridging E visa had already ceased, and he had not made a valid application for a substantive visa that had not been finally determined. Finally, although the applicant was in criminal custody for a brief period, this did not constitute criminal detention at the time of the decision. As such, the Tribunal affirmed the delegate's decision not to grant the Bridging E visa.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.Background and applicant’s immigration history The applicant first arrived in Australia on [date] September 2012 on a Subclass 976 Electronic Travel Authority (ETA) visa. This visa ceased on [date] December 2012 and the applicant became an unlawful non-citizen. He departed Australia on [date] August 2014. The applicant again arrived in Australia on [date] October 2014 on a Subclass 601 visitor visa. This visa ceased on [date] January 2015 and the applicant became an unlawful non-citizen. He departed Australia on [date] April 2016. The applicant’s last arrival into Australia was on [date] October 2016 on a Subclass 601 visitor visa. This visa ceased on [date] January 2017 and a Bridging visa granted to him ceased on 29 March 2017. He became an unlawful non-citizen on 30 March 2017. The applicant applied for a protection visa on 5 December 2018 and was granted various Bridging C visas associated with this application. The protection visa was refused on14 December 2022 and the applicant was notified by email on the same day. The applicant’s last Bridging C visa ceased on 18 January 2023, and he became an unlawful non-citizen. The applicant was granted a Bridging E visa on 18 September 2024, and this ceased on 25 September 2024. He became an unlawful non-citizen on 26 September 2023. The applicant applied for the Bridging E visa which is the subject of this review on 23 September 2023. In the application, the applicant stated that he was applying for a bridging visa to depart Australia, with a proposed departure date of 30 September 2024. The applicant is subject to criminal charges in Queensland. On 17 August 2024 he was granted bail by a Victorian court and was required to attend the [Court 1] on 23 September 2024. He attended on that day and was granted bail. Bail orders from the Victorian court (dated 17 August 2024) and the [Court 1] (dated 1 October 2024), state the applicant must not attend any international points of departure or travel internationally; must surrender any current passport; and must not apply for a new passport. At an interview with the delegate on 14 October 2024, the applicant stated that had been in the Queensland watch house from 23 to 26 September 2024 and in prison/remand from 26 September to 1 October 2024. He was released from criminal custody on bail on 1 October 2024. On 1 October 2024 the applicant was interviewed by an Australian Border Force (ABF) officer. On the same day, the applicant was detained as an unlawful non-citizen under s 189 of the Migration Act 1958 (the Act) and transferred to the Brisbane Immigration Transit Accommodation. On 2 October 2024, the applicant applied for a review of his protection visa refusal with the then Administrative Appeals Tribunal. On 14 October 2024 this became an application for review with the Administrative Review Tribunal (ART). It appears the application for review was made outside the prescribed period for seeking review. The ART is yet to decide whether it has jurisdiction to review the matter.

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 issue in this case is whether:· the applicant is making, or is the subject of, acceptable arrangements to depart Australia at the time of application (cl 050.212(2)) and at the time of decision (cl 050.221); or· the applicant has made a valid application for a substantive visa that has not been finally determined at the time of application (cl 050.212(3)) and at the time of decision; or · the applicant is in criminal detention at the time of application (cl 050.212(7)) and time of decision. For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.Background and applicant’s immigration history The applicant first arrived in Australia on [date] September 2012 on a Subclass 976 Electronic Travel Authority (ETA) visa. This visa ceased on [date] December 2012 and the applicant became an unlawful non-citizen. He departed Australia on [date] August 2014. The applicant again arrived in Australia on [date] October 2014 on a Subclass 601 visitor visa. This visa ceased on [date] January 2015 and the applicant became an unlawful non-citizen. He departed Australia on [date] April 2016. The applicant’s last arrival into Australia was on [date] October 2016 on a Subclass 601 visitor visa. This visa ceased on [date] January 2017 and a Bridging visa granted to him ceased on 29 March 2017. He became an unlawful non-citizen on 30 March 2017. The applicant applied for a protection visa on 5 December 2018 and was granted various Bridging C visas associated with this application. The protection visa was refused on14 December 2022 and the applicant was notified by email on the same day. The applicant’s last Bridging C visa ceased on 18 January 2023, and he became an unlawful non-citizen. The applicant was granted a Bridging E visa on 18 September 2024, and this ceased on 25 September 2024. He became an unlawful non-citizen on 26 September 2023. The applicant applied for the Bridging E visa which is the subject of this review on 23 September 2023. In the application, the applicant stated that he was applying for a bridging visa to depart Australia, with a proposed departure date of 30 September 2024. The applicant is subject to criminal charges in Queensland. On 17 August 2024 he was granted bail by a Victorian court and was required to attend the [Court 1] on 23 September 2024. He attended on that day and was granted bail. Bail orders from the Victorian court (dated 17 August 2024) and the [Court 1] (dated 1 October 2024), state the applicant must not attend any international points of departure or travel internationally; must surrender any current passport; and must not apply for a new passport. At an interview with the delegate on 14 October 2024, the applicant stated that had been in the Queensland watch house from 23 to 26 September 2024 and in prison/remand from 26 September to 1 October 2024. He was released from criminal custody on bail on 1 October 2024.

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.Date of hearing: 22 October 2024Representative for the Applicant: Mr Stanley CHAN (MARN: 0430097)

Ratio Decidendi

Legal Principle Established

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