FASI (Migration) - [2022] AATA 3766

FASI (Migration) [2022] AATA 3766 (12 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr AFA FASI
REPRESENTATIVE:  Mr Simar Hermis
CASE NUMBER:  2211060
Home Affairs REFERENCE(S):               BCC2022/2897274
MEMBER:Nora Lamont
DATE:12 August 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 12 August 2022 at 10:41am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – application for a substantive visa – extended period of unlawful residence – applicant charged with criminal offences – compelling need to work – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 48, 73, 189, 269
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.221, 051.211; rr 1.03, 1.08, 2.20
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 (the Department) to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act) and a decision made by an authorised officer relating to requiring a security under s 269 of the Act.
The applicant applied for the visa on 26 July 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 050.211.
The decision to refuse to grant the visa was made on 28 July 2022 on the basis that the applicant is not an eligible non-citizen of the kind set out in regulations 2.20(7), (8), (9), (10) or (11).
The applicant appeared before the Tribunal on 11 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s de-facto partner, Ms Helen Afa. The Tribunal hearing was conducted with the assistance of an interpreter in the Samoan and English languages.
The applicant was represented in relation to the review.
Summary of delegate’s decision
For an applicant to be granted a BV (E) (Subclass-050), the applicant must satisfy the criteria in clauses 050.21 and 050.22 of Schedule 2 of the Regulations.
In their decision, the delegate concluded that:
• The applicant satisfied subclause 050.211(1) at the time of the application because at that time the applicant was an unlawful non-citizen.
• The applicant satisfied subclass subclause 050.211(2) because he was not an eligible non-citizen of the kind set out in regulation 2.20(7), (8), (9), (10), (11) or (17);
• The applicant did not satisfy requirements of subclause 050.212(2) which states:
An applicant meets the requirements of this subclause if the Minister is satisfied that 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.

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Details

AGLC: FASI (Migration) [2022] AATA 3766
Case: [2022] AATA 3766
Decision Date: 12 August 2022

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa (Subclass 050) by an applicant who had been in Australia unlawfully for an extended period and had faced criminal charges. The delegate of the Minister refused the application, finding that the applicant did not satisfy the criteria for the visa, specifically regarding acceptable arrangements to depart Australia and the intention to apply for a substantive visa. The applicant sought review of this decision.

The primary legal issues before the court were whether the delegate erred in finding that the applicant did not satisfy subclause 050.212(2) of the Regulations, which requires the Minister to be satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia, and whether the delegate erred in finding that the applicant did not satisfy subclause 050.212(3), which requires the applicant to have made a valid application for a substantive visa or that the Minister is satisfied the applicant will apply for one.

The delegate's reasoning was that the applicant was not seeking the bridging visa on the basis of making acceptable arrangements to depart Australia. Furthermore, there was no evidence that the applicant had applied for a substantive visa that could be granted in Australia, nor was the delegate satisfied that the applicant intended to do so within a specified timeframe. The delegate noted that the applicant had been unlawful since November 2016 and had not lodged a substantive visa application despite stating an intention to do so to facilitate a substantive visa application. Consequently, the delegate concluded that the applicant had ample opportunity to apply for a substantive visa and had failed to do so, and therefore would not do so if granted the bridging visa. The delegate also found that the applicant did not meet numerous other subclauses within 050.212.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant was represented in relation to the review.Summary of delegate’s decision For an applicant to be granted a BV (E) (Subclass-050), the applicant must satisfy the criteria in clauses 050.21 and 050.22 of Schedule 2 of the Regulations. In their decision, the delegate concluded that:• The applicant satisfied subclause 050.211(1) at the time of the application because at that time the applicant was an unlawful non-citizen.• The applicant satisfied subclass subclause 050.211(2) because he was not an eligible non-citizen of the kind set out in regulation 2.20(7), (8), (9), (10), (11) or (17);• The applicant did not satisfy requirements of subclause 050.212(2) which states:An 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 delegate provided the following reason for the above conclusion:The applicant was not seeking a visa on the basis of making acceptable arrangements to depart Australia.• The applicant did not satisfy requirements of subclause 050.212(3) which states:An applicant meets the requirements of this subclause if:(a) 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(b) the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.The delegate provided the following reason for the above:There was no evidence before the delegate at the time of their decision that indicated that the applicant had applied for a substantive visa of a kind that can be granted in Australia. Furthermore, the delegate was not satisfied that the applicant can and will apply for a substantive visa of kind that can be granted if the application is in Australia within a specified timeframe. The delegate further explained in the decision that at the time of decision, the information provided by the applicant in his visa application and the searches conducted on the Department systems did not indicate that the applicant had lodged a substantial visa. The delegate also highlighted the point that the applicant indicated in his Department interview that his intention to apply for BV (E) visa was to allow him to apply for a substantive visa however as of 28 July 2022 no such application had been made. Considering the above and the applicant’s un-lawful status since November 2016, the delegate concluded that the applicant has had ample of opportunities to apply for a substantive visa but failed to do so and hence concluded that the applicant will not apply for a visa if he was granted BV (E). The delegate also assessed the applicant’s application and his circumstances and found that the applicant did not meet the requirement of clauses 050.212(3A), 050.212(4), 050.212(4AAA), 050.212(4AA), 050.212(4AB), 050.212(5), 050.212 (5A), 050.212(5B), 050.212(6), 050.212(6AA), 050.212(6A), 050.212(6B), 050.212(7),050.212(8) and 050.212(9).

Ratio Decidendi

Legal Principle Established

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