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

1. 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).

2. 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.

3. 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.

4. 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.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF Claims and evidence

6. 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

7. 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.

8. 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

9. 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]).

10. 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.

11. 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.

12. Therefore, the applicant does not meet cl 050.212(2).

    Substantive visa application

13. 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.

14. ‘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.

15. 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.   

16. The Tribunal told the applicant that it accepted his submissions as set out above, however it remained that it considers it needs to be satisfied that either a substantive visa has been lodged and not yet determined, or that the applicant will lodge an application within the period specified for doing so. As this prescribed period has already lapsed, the Tribunal is concerned the applicant’s circumstances cannot satisfy the requirements of this subclause.

17. The applicant reiterated that he has retained and instructed a lawyer to prepare an application for Ministerial Intervention and that on his interpretation of the subclause, he only needs to demonstrate an intention to lodge an application for a substantive visa.

18. The Tribunal again accepted the applicant’s submissions regarding his briefing of a lawyer to act on his behalf to prepare a Ministerial Intervention application however it did not accept his interpretation of the subclause that a mere intention to lodge a substantive application in the future would satisfy the requirements of the subclause. Rather, the Tribunal considers it needs to be satisfied that if an application for a substantive visa has not yet been lodged, that the applicant will lodge an application within the period specified for doing so. Again, this period has lapsed.

19. The applicant told the Tribunal about his visa history, and his personal circumstances since arriving in Australia. The Tribunal also heard character evidence from the applicant’s partner, a relative and two children. The Tribunal accepts the evidence from the witnesses who spoke candidly and in the Tribunal’s view, reliably about the difficult circumstances arising from the applicant’s detention. The Tribunal expressed sympathy for the situation the applicant and his family find themselves in, however told the applicant that it was bound to consider the requirements as set out in the regulations and does not consider it has the discretion to dispense with the requirements as they are written.

20. The Tribunal has considered the evidence and submissions before it and accepts that the applicant has sought legal advice and may soon lodge an application for Ministerial Intervention to allow him to lodge a substantive visa application outside of the prescribed timeframe. The Tribunal accepts that a Minister may decide in the future that the applicant can lodge an application for a substantive visa out of time; however, the Tribunal needs to make findings on the evidence before it at the time of its decision. The Tribunal considers that it cannot on the evidence, find that a substantive visa application was lodged at the time of application, nor that one will be lodged within the period specified for doing so, simply because this has already lapsed and as a result, as the evidence currently stands, it is no longer available to him to do so.

21. For these reasons, the applicant does not meet cl 050.212(3).

    Judicial review – onshore substantive visa refusal

22. Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.

23. At hearing the applicant confirmed that he was not seeking judicial review of a substantive visa refusal decision. There is also no evidence before the Tribunal that the applicant has applied for judicial review of a decision to refuse to grant him a substantive visa.

24. For these reasons, the Tribunal is not satisfied that an application for judicial review of a decision to refuse to grant the applicant a substantive visa has been made.

25. 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

26. 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.

27. 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.

28. For these reasons, the Tribunal is not satisfied that any of the alternatives in the above subclauses apply to the applicant’s circumstances.

29. Therefore, the applicant does not meet cl 050.212(4).

    Judicial review – member of the family unit

30. 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.

31. 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.

32. 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.

33. Therefore, the applicant does not meet cl 050.212(4AA).

    Judicial review – Class BC or BI visa refusal

34. 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.

35. 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.

36. For these reasons, the Tribunal is not satisfied that an application for judicial review has been made in relation to a spouse, interdependency or partner visa application that has been refused.

37. Therefore, the applicant does not meet cl 050.212(9).

    Consequential cancellation (review/revocation of primary cancellation)

38. Subclause 050.212(5) is met if the applicant held a visa that was cancelled under s 140(1) or (3) because another person’s visa was cancelled, and that other person has applied for review of their visa cancellation decision (or alternatively, the Tribunal is satisfied the other person will make such an application).

39. 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.

40. For these reasons, the Tribunal is not satisfied that the applicant held a visa that was cancelled under subsection 140(1) or (3) of the Act.

41. Therefore, the applicant does not meet cl 050.212(5).

42. 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).

43. 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.

44. For these reasons, the Tribunal is not satisfied that the applicant held a visa that was cancelled under subsection 140(1), (2) or (3) of the Act because another person’s visa was cancelled under section 137J of the Act.

45. Therefore, the applicant does not meet cl 050.212(5A).

    Court declaration / review of citizenship decision

46. 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.

47. 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.

48. 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).

49. Therefore, the applicant does not meet cl 050.212(4AAA).

50. 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.

51. 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.

52. 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).

53. Therefore, the applicant does not meet cl 050.212(4AB).

    Ministerial intervention

54. 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.

55. 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.

56. For these reasons, the Tribunal is not satisfied that the applicant is a person to whom section 48A of the Act applies.

57. Therefore, the applicant does not meet cl 050.212(5B).

58. 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. _

59. 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.

60. For these reasons, the Tribunal is not satisfied that the applicant is the subject of a decision, in relation to an application for a visa or a decision to cancel a visa for which he has made a request to the Minister to substitute a more favourable decision.

61. Therefore, the applicant does not meet cl 050.212(6).

62. Subclause 050.212(6AA) is met if the Minister has substituted a decision under ss 345, 351 or 417 of the Act, but the visa has not been granted because of a visa cap in operation under s 85 of the Act.

63. 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.

64. For these reasons, the Tribunal is not satisfied that the Minister has substituted a more favourable decision for the decision of a review authority with respect to the applicant.

65. Therefore, the applicant does not meet cl 050.212(6AA).

66. Subclause 050.212(6B) is met if the applicant has an outstanding request to the Minister under ss 345, 351 or 417 of the Act made before 1 July 2009, and holds, or has held, a Bridging E visa granted before 1 July 2009 based on the applicant meeting cl 050.212(6A) or, for visa applications made on or after 14 September 2009, cl 050.212(6) or (6A).

67. 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.

68. For these reasons, the Tribunal is not satisfied that the applicant was granted a Bridging E (Class WE) visa before 1 July 2009 based on the Minister substituting a more favourable decision for the decision of a review authority.

1. Therefore, the applicant does not meet cl 050.212(6B).

   Compelling need to work

2. Subclause 050.212(6A) is met if the applicant holds a Bridging E visa that was granted based on meeting cl 050.212(6AA), the applicant is the subject of a favourable exercise of the Ministerial power under ss 345, 351 or 417 of the Act, and the Tribunal is satisfied that the applicant has a compelling need to work.

3. Subclause 050.212(8) is met if the applicant holds a Bridging E visa that was granted because of a valid application for a substantive visa that could be granted onshore and is subject to condition 8101, and the Tribunal is satisfied that the applicant has a compelling need to work.

4. ‘Compelling need to work’ is defined in reg 1.03 of the Regulations as having the meaning set out in reg 1.08. Regulation 1.08 provides that a non-citizen has a compelling need to work if he or she is in financial hardship. Financial hardship is not defined in the legislation, however Departmental guidelines (PAM3) provide guidance on matters that may be relevant in determining financial hardship.

5. At hearing the applicant confirmed that he was not making any claims under these subclauses and was not seeking the visa for either of these purposes. There is also no evidence before the Tribunal that the applicant meets this subclause.

6. For these reasons, the Tribunal is not satisfied that the applicant holds a Bridging E (Class WE) visa granted based on the Minister substituting a more favourable decision for the decision of a review authority, nor that he holds a Bridging E (Class WE) visa granted because of a substantive visa application and that is subject to condition 8101.

7. Therefore, the applicant does not meet cl 050.212(6A) or (8).

   Criminal Detention

8. Subclause 050.212(7) is met if the applicant is in criminal detention, and no criminal justice stay certificate or warrant is in force. A person is in ‘criminal detention’ if he or she is serving a term of imprisonment, including periodic detention, following conviction for an offence, or is in prison on remand. However, a person is not in criminal detention where they are subject to a community service order, on parole after serving part of a term of imprisonment, or on bail awaiting trial (reg 1.09). Periodic detention is defined in reg 1.03 to mean a system of restriction of liberty by which periods at liberty alternate with periods in prison.

9. At hearing the applicant confirmed that he is not in criminal detention and that no stay certificate or warrant is in force. There is also no evidence before the Tribunal that this subclause applies to the applicant.

10. For these reasons, the Tribunal is not satisfied that this clause applies to the applicant because it finds that he is not in criminal detention.

11. Therefore, the applicant does not meet cl 050.212(7).

12. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

13. 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

14. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

    Jade Murphy
    Member