CHAMMA (Migration) - [2022] AATA 4268

CHAMMA (Migration) [2022] AATA 4268 (3 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr AHMAD CHAMMA
CASE NUMBER:  2214092
Home Affairs REFERENCE(S):               BCC2022/3823354
MEMBER:Jade Murphy
DATE:3 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 03 October 2022 at 11:42am

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) –no valid substantive visa application pending with the Department – no outstanding migration matters– applicant has not made any plans to depart Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, r 2.20, cl 050.212
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 15 September 2022. 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.
The decision to refuse to grant the visa was made on 20 September 2022 on the basis that the applicant did not meet one of the alternative grounds set out in cl.050.212(2)-(9) for seeking this visa.
The applicant appeared before the Tribunal by videoconference on 29 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Sarah Osman, Ms Darine Saadieh, and two children who will remain unnamed in this decision record.
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 meets one of the alternative grounds set out in cl.050.212(2)-(9) for seeking this visa.
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(3). However, as the applicant was unrepresented, the Tribunal went through each of the criteria in cl.050.212(2)-(9) at hearing to hear and test any potential claims against the alternative criteria. For the reasons below, the applicant does not meet 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…

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 CHAMMA (Migration)

Details

AGLC: CHAMMA (Migration) [2022] AATA 4268
Case: [2022] AATA 4268
Decision Date: 3 October 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for a Bridging E (Class WE) visa made by the applicant, CHAMMA. The applicant sought to satisfy one of the alternative grounds for this visa as set out in subclauses 050.212(2) to (9) of the Migration Regulations 1994. The Tribunal was required to determine whether the applicant met any of these specified criteria at the time of the visa application and continued to satisfy them at the time of the decision.

The primary legal issues before the Tribunal were whether the applicant was making acceptable arrangements to depart Australia, had a valid substantive visa application pending, or met any of the other alternative criteria for the Bridging E visa. Specifically, the Tribunal examined subclause 050.212(2), which requires the applicant to be making or be the subject of acceptable arrangements to depart Australia, and subclause 050.212(3), which requires a valid application for a substantive visa to be pending. The Tribunal also considered other subclauses relating to court declarations, ministerial intervention, and judicial review proceedings.

The Tribunal found that the applicant did not meet the criteria under subclause 050.212(2) as they confirmed they had made no plans to depart Australia and were not seeking the visa for that purpose. Regarding subclause 050.212(3), while the applicant intended to apply for a spouse visa, this application had not yet been lodged, and the prescribed timeframe for lodging a substantive visa application had lapsed. The applicant's intention to seek Ministerial Intervention to apply out of time was noted, but this did not constitute a valid pending application at the time of the decision. The Tribunal also found that the applicant did not satisfy any of the other alternative grounds examined under subclauses 050.212(4), (4AAA), (4AB), (5B), or (9).

Consequently, the Tribunal concluded that the applicant did not meet the requirements for the Bridging E (Class WE) visa under any of the alternative grounds specified in clause 050.212. Therefore, the Tribunal affirmed the decision under review.

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 evidence The issue in this case is whether the applicant meets one of the alternative grounds set out in cl.050.212(2)-(9) for seeking this visa.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(3). However, as the applicant was unrepresented, the Tribunal went through each of the criteria in cl.050.212(2)-(9) at hearing to hear and test any potential claims against the alternative criteria. For the reasons below, the applicant does not meet 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]). At hearing, the Tribunal asked the applicant whether he had made any arrangement to depart Australia. The applicant confirmed that he is not making any claims under this subclause, and he has not made any plans to depart Australia. He had made enquiries about the practical steps needed to do so, and for several sensitive reasons (explained to the Tribunal at hearing), had decided he was not able to do so at the time of hearing and was therefore not seeking the visa for this purpose. For these reasons, the Tribunal is not satisfied that at the time of application or decision, the applicant was making nor was he the subject of acceptable arrangements to depart Australia. Therefore, the applicant does not meet cl 050.212(2).Substantive visa application Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s 5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without an application being made: s 5(9) of the Act. At hearing, the applicant told the Tribunal, as he had the Department, that he intends to apply for a spouse visa but that an application had not yet been lodged. The Tribunal told the applicant that the delegate’s decision (as provided to the Tribunal by the applicant) stated that the prescribed timeframe for lodging a substantive visa application had lapsed and that the Tribunal shares this concern. The applicant confirmed that he understood that the prescribed timeframe for lodging a substantive visa application has lapsed, but that he has retained a lawyer who is instructed to apply for Ministerial Intervention to allow him to apply for a substantive visa out of time. The applicant submitted that his lawyer has not yet prepared the application, let alone lodged it, but that he expects this to be done within the next week or two. Oral testimony from the applicant’s partner, Ms Osman, corroborated the applicant’s submissions.

Decision

Reasons for decision

Therefore, the applicant does not meet cl 050.212(3A).Judicial review – substantive visa decision (other than refusal); Visa cancellation – merits review / s 137K revocation and Judicial review – validity of a law Subclause 050.212(4) is met if:(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); or(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) or (ba) or (bb)]; or(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. At hearing the applicant confirmed that he was not making any claims under this subclause and was not seeking the visa for any of these purposes. There is also no evidence before the Tribunal that the applicant satisfies any of the alternatives in the above subclauses. For these reasons, the Tribunal is not satisfied that any of the alternatives in the above subclauses apply to the applicant’s circumstances. Therefore, the applicant does not meet cl 050.212(4).Judicial review – member of the family unit 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) or (4)(a) or (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. At hearing the applicant confirmed that he was not making any claims under this subclause and was not seeking the visa for this purpose. There is also no evidence before the Tribunal that the applicant meets this subclause. For these reasons, the Tribunal is not satisfied that the applicant is a family member of a person who is an applicant in any judicial review proceedings referred to in this subclause. Therefore, the applicant does not meet cl 050.212(4AA).Judicial review – Class BC or BI visa refusal 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.

Ratio Decidendi

Legal Principle Established

Therefore, the applicant does not meet cl 050.212(5A).Court declaration / review of citizenship decision 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. At hearing the applicant confirmed that he was not making any claims under this subclause and was not seeking the visa for this purpose. There is also no evidence before the Tribunal that the applicant meets this subclause. For these reasons, the Tribunal is not satisfied that the applicant has applied for either a declaration from a court that the Act does not apply to him, or judicial or merits review of a decision made in relation to him under the Australian Citizenship Act 2007 (Cth). Therefore, the applicant does not meet cl 050.212(4AAA). Subclause 050.212(4AB) is met if the applicant is a member of the immediate family (as defined under reg 1.12AA) of a person who meets the requirements of cl 050.212(4AAA) or is a brother or sister (who has not turned 18) of a person who meets the requirements of cl 050.212(4AAA) and who has not turned 18. At hearing the applicant confirmed that he was not making any claims under this subclause and was not seeking the visa for this purpose. There is also no evidence before the Tribunal that the applicant meets this subclause. For these reasons, the Tribunal is not satisfied that the applicant is a family member of a person who has applied for either a declaration from a court that the Act does not apply to them, or judicial or merits review of a decision made in relation to them under the Australian Citizenship Acts 1948 or 2007 (Cth). Therefore, the applicant does not meet cl 050.212(4AB).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. At hearing the applicant confirmed that he was not making any claims under this subclause and was not seeking the visa for this purpose. There is also no evidence before the Tribunal that the applicant meets this subclause. For these reasons, the Tribunal is not satisfied that the applicant is a person to whom section 48A of the Act applies. Therefore, the applicant does not meet cl 050.212(5B). 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. _