BAKATA (Migration) - [2024] AATA 1474

BAKATA (Migration) [2024] AATA 1474 (21 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr SAIRUSI BAKATA
REPRESENTATIVE:  Mr LEO GIAMPIETRO
CASE NUMBER:  2411521
Home Affairs REFERENCE(S):               BCC2024/2690770
MEMBER:Paul Noonan
DATE:21 May 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 21 May 2024 at 12.40pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging E) – acceptable arrangements to depart – passport lapsed, period as unlawful non-citizen and working – discussions with family about whether to apply for another visa – stated wish to stay in Australia and work – not eligible for other subclass visas – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73, 359A(1), (4)(b), 376
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212(2)
CASES
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
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 7 May 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) which states that the 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 9 May 2024 on the basis that the applicant does not meet the requirements in cl 050.212.
The applicant appeared before the Tribunal on 21 May 2024 to give evidence and present arguments. The applicant’s representative did not attend the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
The Tribunal discussed these criteria with the applicant. The applicant confirmed that he is now seeking to meet cl 050.212(2) only.
Acceptable arrangements to depart Australia
cl 050.212(2) states that the 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. For the reasons below, the applicant does not meet cl 050.212(2).
‘Acceptable arrangements’ is not defined in the…

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 BAKATA (Migration)

Details

AGLC: BAKATA (Migration) [2024] AATA 1474
Case: [2024] AATA 1474
Decision Date: 21 May 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Bridging E (Class WE) visa, subclass 050. The applicant's eligibility for this visa was contested, particularly concerning whether they were making "acceptable arrangements to depart Australia," a key criterion under clause 050.212(2) of the relevant regulations. The Tribunal also briefly addressed an application for a Bridging (Protection Visa Applicant) visa, subclass 051, which the applicant did not meet due to not being a relevant eligible non-citizen.

The central legal issue before the Tribunal was whether the applicant satisfied the requirement of making "acceptable arrangements to depart Australia" at the time of their visa application and at the time of the decision. This involved assessing the genuineness of the applicant's intentions and the steps taken, or not taken, to facilitate their departure from Australia. The Tribunal also had to consider the applicant's history as an unlawful non-citizen who had been working and the fact that their passport had lapsed.

The Tribunal reasoned that the applicant had not demonstrated acceptable arrangements to depart. This conclusion was based on the applicant's statements to the Department indicating a desire to remain in Australia to work and explore options for a new visa. Furthermore, the applicant's history of working as an unlawful non-citizen for four years and the lapse of their passport suggested a disregard for migration laws and an intention to remain rather than depart. The Tribunal found the applicant's claim of needing to be released to arrange departure with their mother unconvincing, especially as they could not explain why this required release from detention and had not taken concrete steps like renewing their passport.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa. The applicant also failed to meet the criteria for a Bridging (Protection Visa Applicant) visa, subclass 051.

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 EVIDENCEThe 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. The Tribunal discussed these criteria with the applicant. The applicant confirmed that he is now seeking to meet cl 050.212(2) only.Acceptable arrangements to depart Australia cl 050.212(2) states that the 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. For the reasons below, the applicant does not meet cl 050.212(2). ‘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]). The Tribunal discussed with the applicant that the delegate’s decision (a copy of which he supplied to the Tribunal) sets out that, at interview with the Department on 8 May 2024, he stated that he wished to be released from detention so that he could discuss his options with his Australian based mother as to whether he lodges an application for a new visa or departs Australia. He also stated that he wished to discuss this with his family as to whether they needed him to stay in Australia before deciding whether to depart or not. Further that he stated to the interviewer that he wished to stay in Australia and find a way to find a new visa to work. Further, it was noted, that the applicant had been an unlawful non-citizen in Australia who had been working for the previous four years, reflecting a history of disregarding Australian migration laws, and also that he had let his Fijian passport lapse. The Tribunal put to the applicant that this history and his statements at interview, may indicate to the Tribunal that he has an intention to remain in Australia and work. The applicant stated that he just wanted three weeks to arrange his departure with his mother. The applicant stated that this is because he has no money and she will pay all his travel expenses. The Tribunal asked the applicant whether he would be willing to let the Department arrange his departure straight from detention. The applicant stated that he did not want this and wanted his mother to arrange it. He submitted that she has the money as she works. The Tribunal asked the applicant whether his mother could not simply purchase a ticket for him. The applicant stated that he needed to be with her outside of detention but did not explain why this was the case. On balance, the Tribunal considers that the applicant has not demonstrated that he was making acceptable arrangements to depart Australia at the time of application. This is because he has made recent statements indicating an intention to continue working in Australia and he has not taken any steps to actually arrange his passage back to Fiji, such as renewing his passport or obtaining valid travel documentation. Further he has a long history of working as an unlawful non-citizen in Australia which indicates a propensity to disregard Australian migration laws, which also indicates to the Tribunal a continued intention to work rather than depart. These considerations significantly outweigh the applicant’s vague claim that he needs to be released to be with his mother, in order to begin the process of arranging his departure.

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.Paul NoonanMember

Ratio Decidendi

Legal Principle Established

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