Anitoni (Migration) - [2024] AATA 2820

Anitoni (Migration) [2024] AATA 2820 (26 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Feingaola Anitoni
CASE NUMBER:  2423763
Home Affairs REFERENCE(S):               BCC2024/3694929
MEMBER:Rachel Da Costa
DATE:26 July 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:
·cl 050.212 of Schedule 2 to the Regulations.

Statement made on 26 July 2024 at 2:08pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – periods of unlawful residence – airline ticket – support for Australian partner – family support – decision under review remitted
LEGISLATION
Migration Act 1958, ss 73, 376
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
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 11 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(2)-(9) and, in particular, subclause 050.212(2) which states that “[a]n applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.”
The decision to refuse to grant the visa was made on 16 July 2024 on the basis that the applicant did not meet the requirements in subclause 050.212 of Schedule 2 to the Regulations.
The applicant appeared before the Tribunal on 25 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Falefoou Morris (the applicant’s sister), Ms Kristina Vuna (the applicant’s partner) and Mr Robert Morris (the applicant’s brother-in-law and Ms Morris’s husband). The Tribunal hearing was conducted by videoconference with the assistance of an interpreter in the Tongan and English languages although the witnesses did not need the interpreter.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background and migration history
In the hearing, the applicant gave evidence about his personal background and migration and visa history which is supported by information on the Department and Tribunal files.
The applicant is a citizen of Tonga. In Tonga, he has his mother and a sister who live on one of the outer islands and a brother…

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: Anitoni (Migration) [2024] AATA 2820
Case: [2024] AATA 2820
Decision Date: 26 July 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant, a citizen of Tonga, who sought review of a decision concerning his application for a Bridging E (Class WE) visa. The applicant had been in Australia since December 2019, initially on a seasonal worker program visa. After his visa expired in August 2020, he remained in Australia as an unlawful non-citizen, having been granted several Bridging E visas in the interim. His most recent bridging visa expired in January 2023, and he remained in Australia unlawfully, subsequently being detained. The applicant's partner, an Australian citizen, supported him financially, along with his sister and brother-in-law. The applicant and his partner had experienced recent miscarriages, impacting his partner's mental health, and they wished to resolve his visa status to build a life together in Australia.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 050 (Bridging (General)) visa, specifically under clause 050.212(2) of Schedule 2 to the Migration Regulations 1994, which requires the applicant to be making, or be the subject of, acceptable arrangements to depart Australia. The Tribunal also considered whether the applicant met the threshold criteria under clause 050.211, which relates to his immigration status. The Tribunal noted that the concept of "acceptable arrangements" is not defined in the Regulations but that case law, such as *Chen* and *Lin*, indicates that the genuineness of the applicant's intentions in making such arrangements is a relevant consideration.

The Tribunal found that the applicant met the requirements of clause 050.211, as he was an unlawful non-citizen at the time of application and remained so at the time of the decision, and was not an eligible non-citizen of a kind excluded by subregulation 2.20. Crucially, the Tribunal was satisfied that the applicant met clause 050.212(2) because he had provided a confirmed flight itinerary to depart Australia on 21 September 2024, along with supporting documentation including statutory declarations from his partner and family, and letters from his partner's medical practitioners. The Tribunal concluded that these arrangements, coupled with the applicant's stated intention to depart, constituted acceptable arrangements for departure.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant meets the criteria for a Subclass 050 (Bridging (General)) visa under clause 050.212 of Schedule 2 to the Regulations. The Tribunal also noted that the applicant did not meet the requirements for a Subclass 051 (Bridging (Protection Visa Applicant)) 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 matter should be remitted for reconsideration.Background and migration history In the hearing, the applicant gave evidence about his personal background and migration and visa history which is supported by information on the Department and Tribunal files. The applicant is a citizen of Tonga. In Tonga, he has his mother and a sister who live on one of the outer islands and a brother who lives on the main island in Tongatapu. Before coming to Australia, the applicant lived with his brother who is an electrician and he helped his brother in his business. In Australia, the applicant lives with his sister and her husband, their four children, and his partner. All those people are Australian citizens or in the case of his sister, an Australian Permanent Resident. He also has an uncle and aunt in Australia, both of whom are Australian citizens. The applicant came to Australia in December 2019 on a subclass 403 visa as part of the seasonal worker program and worked as a fruit picker in Queensland. He came to Australia to find better opportunities in life. After his visa expired in August 2020, he remained in Australia as an unlawful non-citizen and has not done regular paid work since that time. Between 11 January 2021 and 3 January 2023, the applicant has been granted five Bridging E visas and spent various periods of time as an unlawful non-citizen. His most recent Bridging visa E (prior to the visa which is the subject of this application for review) was granted on 3 January 2023 on the basis that the applicant depart Australia by 17 January 2023. The applicant did not depart Australia. That visa ceased on 17 January 2023 and the applicant became an unlawful non-citizen and remains so to date. On 7 July 2024, he was located by Australian Border Force and detained in Villawood Immigration Detention Centre where he remains. The applicant gave evidence that he does not work but helps babysit his sister’s children. His partner works on a casual basis in a warehouse and she supports him financially and so do his sister and brother-in-law. The applicant and his partner have around $9000 in savings and she owns a car. The applicant does not send money home to Tonga because he does not have the funds to do that. A woman called Daphne Leveni helped him to fill out his Bridging visa application form. She is a relative of his partner. The applicant and his partner have been together since April 2021. They are in a serious, committed relationship. They do not have any children together but in September 2023 and April 2024, the applicant’s partner suffered miscarriages. This has affected both of them emotionally but the applicant’s partner in particular. She is receiving support from her General Practitioner and regularly sees a psychologist to help her with symptoms of depression. The applicant and his partner want him to be able to resolve his visa situation so that he can be with his partner in Australia and they can build their lives here together. CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

Evidence

Evidence Before The Court

The applicant and his partner have been together since April 2021. They are in a serious, committed relationship. They do not have any children together but in September 2023 and April 2024, the applicant’s partner suffered miscarriages. This has affected both of them emotionally but the applicant’s partner in particular. She is receiving support from her General Practitioner and regularly sees a psychologist to help her with symptoms of depression. The applicant and his partner want him to be able to resolve his visa situation so that he can be with his partner in Australia and they can build their lives here together. 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 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 this case, the applicant is seeking to meet cl 050.212(2), namely, that he is making, or is the subject of, acceptable arrangements to depart Australia. The applicant does not claim to meet any of the other alternative criteria in cl 050.212 and the Tribunal finds that he does not. For the reasons below, the Tribunal finds that 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]). As stated in Lin at [30]:…the Tribunal, when deciding whether it was satisfied that the applicant was making acceptable arrangements to depart Australia, was entitled to consider whether the applicant’s intentions were genuine. On the facts of this case there were no real arrangements at all, but let it be assumed that some paperwork or other formal arrangements had been made, but that it was apparent that the applicant had no genuine intention of carrying through with those arrangements. That circumstance could clearly so affect the nature of the arrangements, in my view, to the extent that the respondent might not be satisfied that they were acceptable.

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 remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:·cl 050.212 of Schedule 2 to the RegulationsRachel 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 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 this case, the applicant is seeking to meet cl 050.212(2), namely, that he is making, or is the subject of, acceptable arrangements to depart Australia. The applicant does not claim to meet any of the other alternative criteria in cl 050.212 and the Tribunal finds that he does not. For the reasons below, the Tribunal finds that 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]). As stated in Lin at [30]:…the Tribunal, when deciding whether it was satisfied that the applicant was making acceptable arrangements to depart Australia, was entitled to consider whether the applicant’s intentions were genuine. On the facts of this case there were no real arrangements at all, but let it be assumed that some paperwork or other formal arrangements had been made, but that it was apparent that the applicant had no genuine intention of carrying through with those arrangements. That circumstance could clearly so affect the nature of the arrangements, in my view, to the extent that the respondent might not be satisfied that they were acceptable. The Tribunal has before it the following relevant documents in relation to the applicant’s application which it has taken into account in making its decision:· Australian Border Force Immigration Status Service Located Person Interview form dated 7 July 2024;· Department of Home Affairs Detention Client Interview form dated 8 July 2024;· Bridging visa E application form dated 11 July 2024;· Notes from interview between the delegate and the applicant in respect of his Bridging visa E application made on 12 July 2024 and 17 July 2024;· Delegate’s decision made 16 July 2024 which was provided by the applicant to the Tribunal;· Confirmation and e-ticket flight itinerary for the applicant to fly from Sydney to Nuku’Alofa on 21 September 2024;· Statutory Declaration of Kristina Vuna (the applicant’s partner) dated 11 July 2024;· Letter from the applicant to the Visa Assessment Officer, Bridging visa, Department of Home Affairs, dated 11 July 2024;· Letter from Anil Kaushik, Psychologist, Casula Central Medical Centre in respect of the applicant’s partner dated 9 July 2024;· Letter from Dr Habib Hassan, General Practitioner, Casula Central Medical Centre, in respect of the applicant’s partner, dated 9 July 2024;· Letter of support from Ms Falefoou Morris (the applicant’s sister) dated 10 July 2024;· Letter of support from David Namoa (the applicant’s uncle) dated 10 July 2024;· Letter of support from Sherry Namoa (the wife of David Namoa) dated 10 July 2024;· Bio-data page of the applicant’s Tongan passport with expiry date of 1 March 2031.