Brooks (Migration) - [2023] AATA 2815

Brooks (Migration) [2023] AATA 2815 (10 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Ms Christina Suzanne Brooks
CASE NUMBER:  2309470
Home Affairs REFERENCE(S):               BCC2023/3596350
MEMBER:Namoi Dougall
DATE:10 July 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 10 July 2023 at 7:16pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – period of unlawful residence – applicant convicted of several offences – credibility issues – failing to report on bail – acceptable arrangements to depart Australia – application for a substantive visa – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 48, 73, 85, 189, 351
Migration Regulations 1994, Schedule 2, cls 010.211, 050.212, 050.221, 051.211

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 378 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 26 June 2023. 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 matte are the primary criteria in cl 050.212.
The decision to refuse to grant the was made on 29 June 2023 on the basis that the delegate was not satisfied that the applicant met any of the requirements of cl.050.212.
The applicant appeared before the Tribunal on 6 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Alexander John Newnham. The Tribunal will refer to Mr Newnham either by his name or the applicant’s partner throughout the decision.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is whether the applicant meets the primary criteria in cl.050.212.

Applicant’s migration and criminal history

On 2 November 2018, the applicant has entered Australia on Subclass 601 visa granted offshore on 20 October 2018, which was valid until 13 December 2019. The applicant entered and departed Australia a number of times on this visa. A second Subclass 601 visa was granted to the applicant offshore on 23 September 2019 which was valid until 13 December 2019 and the applicant entered Australia on that visa on 24 September 2019.
On 13 December 2019 and 15 May 2020,…

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 Brooks (Migration)

Details

AGLC: Brooks (Migration) [2023] AATA 2815
Case: [2023] AATA 2815
Decision Date: 10 July 2023

CaseChat Overview and Summary

The applicant, Brooks, sought judicial review of a decision concerning her Bridging E (Class WE) visa. The dispute arose from the applicant's period of unlawful residence in Australia, her conviction for several offences, and associated credibility issues, including failing to report on bail. The matter was heard by Namoi Dougall.

The court was required to determine whether the applicant met the criteria for a Bridging E visa under subclause 050.212(4) of the Migration Regulations 1994. Specifically, the court needed to assess if the applicant had applied for judicial review of a substantive visa decision, or if the Minister had done so, or if the applicant had applied for merits review of a visa cancellation decision, or if the Tribunal was satisfied that the applicant would make such an application. The court also considered whether the applicant met other relevant subclauses of 050.212, such as those relating to judicial review of the validity of a law, or circumstances where a visa was cancelled due to another person's visa cancellation.

The court found that the applicant had not provided any information or evidence to suggest she had sought judicial review of any visa decision or cancellation, nor had she made any claim to that effect. Consequently, the court concluded that the applicant did not satisfy subclauses 050.212(3A), (4), (4AA), or (9). Similarly, there was no indication that the applicant had had any visa cancelled, meaning she did not meet subclauses 050.212(5) and (5A). The court also noted that the applicant had not applied for a declaration that the Migration Act did not apply to her, or for judicial review or merits review of a decision under the Australian Citizenship Act 2007, thus not meeting subclause 050.212(4AAA).

The court affirmed the decision under review, finding that the applicant did not meet the requirements for the Bridging E visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 28 June 2023, the applicant was interviewed whilst in immigration detention (the detention interview). The applicant is recorded as having stated the following at her detention interview:· The applicant will gather up her documents and apply for a Partner visa as she has been in a relationship with Mr Newnham for 4 years. · She has $470 in savings but when it was explained that this is not enough to apply for a partner visa, she stated that her partner will pay for a visa application. The applicant stated that her partner has around $10,000 and is a FIFO.· When asked why she had not already applied for a partner visa while in the community for 4 years, the applicant stated that they had been advised more time was needed to be eligible. · When asked about the contradiction between the applicant providing a valid passport to apply for a Bridging visa and her advising ABF officers when detained that her passport expired, the applicant stated that she had told the officers that she did not know the whereabouts of her valid passport, but her partner had now found the passport.· When asked about her convictions, the applicant claimed that they pent convictions and she is not guilty of the charges she is facing. She clarified that it was her partner who stole the car, and she was not involved, and she did not know the car was stolen. Evidence given at hearing At the hearing, the applicant stated that she will be lodging a partner visa application and she has started the process by collating requirement documentation. The applicant also stated that she has started to complete the application form online and to check what documents she is required to provide. When asked why she did not apply earlier as she has stated that she has been in a relationship since shortly after she arrived in Australia, the applicant stated that she needed to be in Australia for 4 years to be a resident and she reached four years in June 2023. In the beginning, the applicant wanted to gain residency on her own without her partner, but she was poorly advised, and it was better to apply for partner visa. She was confused about the four years as she found that requirement from looking at the Department’s website as to permanent residency, and she thought she needed to be in Australia for 4 years. The Tribunal asked the applicant to provide a copy of a screenshot of the incomplete online application which the applicant agreed to do so, although at the end of the hearing the Tribunal indicated that this may not be sufficient to establish that an application will be lodged. At the hearing, the applicant stated it was October 2018 that she met Mr Newnham online. Their relationship stated when they met in person in November 2018. The applicant started to live with Mr Newnham on 28 June 2019 and she lived with him until about 6 months ago as he is staying with his father, who has had a double knee replacement. At the hearing, Mr Newnham stated that he met the applicant online in September 2019 and met her in-person in October 2019. They started to live together around June or July 2019. The Tribunal asked if they had lived together throughout that period and Mr Newnham said until March 2023 when he had a court case, and a bail condition was that he had to live with his father in Carramar a suburb of Perth. Later, the Tribunal asked the applicant about the contradiction in what the applicant and Mr Newnham had stating as to why he was living with his father. The applicant stated that originally his bail condition was that he lived with his mother but subsequently the address was changed as his mother was to travel overseas.

Decision

Reasons for decision

Subclause 050.212(4) is met if:Judicial review – substantive visa decision (other than refusal)(a)the applicant has applied for judicial review of a decision in relation to a substantive visa (other than a decision to refuse the visa); or (aa)the Minister has applied for judicial review of a decision in relation to the applicant’s substantive visa application (other than a decision relating to refuse the visa); orVisa cancellation – merits review / s 137K revocation(b)the applicant has applied for merits review of a decision to cancel a visa; or(ba)the applicant has applied under s 137K for revocation of the cancellation of a visa; or(bb)the applicant has applied for merits review of a decision under s 137L not to revoke the cancellation of a visa; or(c)the Minister (or Tribunal) is satisfied that the applicant will make an application of a kind referred to in cl 050.212(4)(b), (ba) or (bb)Judicial review – validity of a law(d)the applicant has applied for judicial review of the validity of a law that affects their eligibility to apply for a substantive visa or their entitlement to be granted or continue to hold a substantive visa. Subclause 050.212(4AA) is met if the applicant is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in cl 050.212(3A)(b), (4)(a), (4)(aa) or (4)(d), that other person is not a party to a representative proceeding, and the applicant made a combined substantive visa application with that other person’s application. Subclause 050.212(9) is met if a decision to refuse the applicant (or a member of the family unit who has made a combined application) a Class BC or BI visa is the subject of valid judicial review proceedings that have not been completed, and the applicant (or member of the family unit) does not satisfy cl 010.211(6)(c) for the grant of a Bridging A (Class WA) visa. There is no information or evidence on the applicant’s files nor has the applicant made any claim that indicates that the applicant or a member of her family have has sought judicial review for any visa decision or cancellation. Accordingly, the applicant does not meet cl 050.212(3A), (4), (4AA) or (9). Subclause 050.212(5A) is met if the applicant held a visa that was cancelled under s 140(1), (2) or (3) because another person’s visa was cancelled under s 137J, and that other person has applied for revocation of their visa cancellation under s 137K or has applied for merits review of a non-revocation decision made under s 137L (or alternatively, the Tribunal is satisfied the other person will make such an application). There is no information or evidence on the applicant’s files nor has the applicant made any claim that indicates that the applicant has had any visa cancelled. Accordingly, the applicant does not meet cl 050.212(5) and (5A). Subclause 050.212(4AAA) is met if the applicant has applied for a declaration from a Court that the Migration Act does not apply to the applicant or has applied for judicial review or merits review of a decision made in relation to the applicant under the Australian Citizenship Act 2007 (Cth), and those proceedings have not been completed.

Ratio Decidendi

Legal Principle Established

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