Dang (Migration) - [2021] AATA 3954

Dang (Migration) [2021] AATA 3954 (12 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Tran Chinh Dang
CASE NUMBER:  2113308
Home Affairs REFERENCE(S):               BCC2021/1832549
MEMBER:Phoebe Dunn
DATE:12 October 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 12 October 2021 at 11:10am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – criminal offences, imprisonment and immigration detention – eligibility criteria – arrangements to depart Australia or making of substantive visa application – original intention to depart changed to intention to marry partner – no partner visa application made within extended time limit, or since – partner’s financial situation and applicant’s previous work without permission – no steps taken to regularise status after student visa cancelled – claim not to have understood notice about applying for substantive visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), (9), 73, 194, 195(1), (2), 189, 359AA, 376
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212(2), (3)(b), 050.221, Schedule 8, conditions 8101, 8401, 8506, 8508, 8564
CASE
Liu v Minister for Immigration [2008] FMCA 725
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 23 September 2021. 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) and cl 050.212(3).
The decision to refuse to grant the visa was made on 29 September 2021 on the basis that the delegate was not satisfied that the applicant would meet the requirements in cl 050.223, as the delegate was not satisfied that the applicant would abide by any conditions imposed on the visa, if granted.
The Tribunal received a copy of a review application from the applicant on 30 September 2021, which was accompanied by a copy of the delegate’s decision.
The matter was constituted to a Tribunal Member on 4 October 2021.
By letter dated 4 October 2021, the Tribunal wrote to the applicant via his agent inviting them to attend a hearing via videoconference on 7 October 2021.
On 6 October 2021, the Tribunal received submissions and supporting documents from the applicant’s agent, together with a response to the hearing invitation which included a request that the applicant’s partner and one of her children attend the hearing. The applicant’s agent provided the following supporting documentation:
a.Photographs of various documents and screen shots purporting to demonstrate transfers…

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 Dang (Migration)

Details

AGLC: Dang (Migration) [2021] AATA 3954
Case: [2021] AATA 3954
Decision Date: 12 October 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by the Department of Home Affairs to refuse to grant the applicant a Subclass 050 Bridging E visa. The applicant had a complex immigration history involving criminal offences, imprisonment, and immigration detention. The central dispute concerned whether the applicant met the eligibility criteria for a Bridging E visa, specifically whether he was making acceptable arrangements to depart Australia or had made or would make a substantive visa application within the allowed timeframe.

The Tribunal was required to determine if the applicant satisfied any of the eligibility criteria for a Bridging E visa as set out in clauses 050.212(2) to (9) of the Migration Regulations 1994. These criteria included making acceptable arrangements to depart Australia or having made, or intending to make, a substantive visa application within a specified period. The Tribunal also considered whether the applicant would abide by any conditions imposed on a bridging visa, and if not, whether a security would satisfy the Tribunal of his compliance.

The Tribunal found that the applicant had not yet made a substantive visa application, although he expressed an intention to marry his partner and apply for a Partner Visa (Subclass 820) following his release from detention. His legal representative indicated a need for three weeks to lodge such an application. However, the Tribunal noted that the applicant had not taken steps to regularise his status after his student visa was cancelled, nor had he made a substantive visa application within any extended time limit. The Tribunal concluded that the applicant did not meet the criteria for a Bridging E visa, nor did he meet the requirements for a Subclass 051 Bridging (Protection Visa Applicant) visa, as he was not an eligible non-citizen.

Consequently, the Tribunal affirmed the Department's decision not to grant the applicant a Subclass 050 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

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 the requirements for the grant of a Subclass 050 Bridging Visa E.The hearing At the hearing, the Tribunal explained the Tribunal’s role in relation to the application before it, being to review the Department’s decision to refuse to grant the applicant a Bridging Visa E. The Tribunal noted that in undertaking the review, the Tribunal first needed to be satisfied that the applicant met one or more of the eligibility criteria for the grant of the visa and if one or more were satisfied, then the Tribunal needed to be satisfied that the applicant would abide by any conditions that the Tribunal would impose on a bridging visa. The Tribunal also noted that if the Tribunal were not satisfied that the applicant would comply with the conditions, whether the imposition of a security would satisfy the Tribunal that he would. The Tribunal requested that the applicant’s partner, who was appearing as a witness for the applicant, exit the hearing room while the Tribunal took evidence from the applicant. The Tribunal summarised its understanding of the applicant’s immigration history to date, and the relevant dates on which he was charged and convicted of criminal offences by Victoria Police, when he was taken into and released from criminal detention and when he was taken into immigration detention. The Tribunal confirmed with the applicant and his lawyer that the applicant had not yet made a substantive visa application. The applicant confirmed that he had not yet applied for a substantive visa but had asked his lawyer to lodge an intention of marriage notice on 15 May 2021. He stated that he had intended to marry his partner and make a Partner Visa (UK820) application when he was released from criminal detention, but that he was subsequently detained in Immigration detention. He stated that his lawyer had told him that if he was allowed out of detention he would be able to make an application for a Partner Visa (UK820). The applicant’s lawyer confirmed that if the applicant was granted a Bridging Visa E, it was the applicant’s intention to marry his partner as soon as possible on release from detention and to apply for a substantive visa, being a Partner Visa (UK820), following the marriage. The applicant’s lawyer stated that he required three weeks to do so. The Tribunal outlined to the applicant the threshold eligibility criteria for the grant of a Bridging Visa E contained in cl 050.212(2) to (9). The Tribunal explained that the applicant must meet one or more of those criteria at the time of application and at that time of decision, but they need not be the same criteria. The Tribunal stated that in this instance the relevant criteria included:a.The applicant is making acceptable arrangements to depart Australia (cl 050.212(2)); orb.The applicant has made a substantive visa application or will make an application within the period allowed (cl 050.212(3)).

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.Phoebe DunnMember

Ratio Decidendi

Legal Principle Established

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