Mafoa (Migration) - [2024] ARTA 643

MAFOA (MIGRATION) [2024] ARTA 643 (15 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Bob Mafoa
Respondent:  Minister for Home Affairs
Tribunal Number:  2442132
Tribunal:General Member S Aster
Place:Melbourne
Date:  15 November 2024
Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:
·cl 050.212(3) of Schedule 2 to the Migration Regulations 1994 (Cth).

Statement made on 15 November 2024 at 12:56pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – an Unlawful Non-Citizen – partner is a New Zealand citizen – criminal conviction – intend to apply for a partner visa – applicant is genuinely motivated to regularise his migration status in Australia – applicant would apply for a partner visa before the cessation of his bridging visa – decision under review remitted
LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cl 050.212
STATEMENT OF 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 24 October 2024. 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 29 October 2024 on the basis that the applicant did not meet one of the alternative grounds for seeking the visa. The applicant appeared before the Tribunal by video on 14 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, Ms Pirikore Amanda William. The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan and English languages.
The applicant was represented in relation to the review.
The issue for determination in this case is whether the applicant met one of the alternative grounds for seeking the bridging visa at the time he applied. The grounds for seeking the visa are set out in cl 050.212(2)-(9) of Schedule 2 to the Regulations.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant arrived in Australia on 3 January 2019 on a Subclass 600 tourist visa and has remained in the country since that time. The applicant has allowed his visa to cease on four separate occasions, remaining in Australia unlawfully from:
·20 May 2019 to 19 November…

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 Mafoa (Migration)

Details

AGLC: Mafoa (Migration) [2024] ARTA 643
Case: [2024] ARTA 643
Decision Date: 15 November 2024

CaseChat Overview and Summary

The matter involves an application for judicial review of a decision to refuse a Subclass 050 (Bridging (General)) visa for an applicant who is an unlawful non-citizen. The applicant, who arrived in Australia on a tourist visa in 2019, has remained in the country unlawfully after his visa expired. The applicant, who has a partner who is a New Zealand citizen, intends to apply for a partner visa. The application was made whilst the applicant was in detention, both criminal and immigration. The matter was heard by the Tribunal, which found that the decision to refuse the visa was flawed and remitted it back to the Minister for reconsideration.

The legal issues before the Tribunal centred on whether the Minister erred in finding that the applicant did not meet the criteria for a Subclass 050 (Bridging (General)) visa under cl 050.212 of Schedule 2 to the Migration Regulations 1994 (Cth). Specifically, the Tribunal had to determine whether the applicant met the criteria for making acceptable arrangements to depart Australia. The applicant argued that he was genuinely motivated to regularise his migration status in Australia and would apply for a partner visa before the cessation of his bridging visa. The Tribunal found that the Minister had failed to properly consider the applicant’s intentions in making arrangements to depart and whether they were genuine.

The Tribunal found that the Minister did not properly consider the evidence of the applicant’s intentions and whether they were genuine. The Tribunal found that the Minister had made an error in law by not considering the applicant’s genuine motivation to regularise his migration status in Australia. The Tribunal concluded that the decision under review was flawed and should be set aside and remitted for reconsideration. The Tribunal found that the applicant met the criteria for a Subclass 050 (Bridging (General)) visa under cl 050.212(3) of Schedule 2 to the Migration Regulations 1994 (Cth).

The Tribunal set aside the decision to refuse the visa and remitted the matter to the Minister for reconsideration in accordance with the order that the applicant met the criteria for a Subclass 050 (Bridging (General)) visa. The Tribunal found that the Minister had failed to properly consider the evidence of the applicant’s intentions and whether they were genuine. The Tribunal found that the Minister had made an error in law by not considering the applicant’s genuine motivation to regularise his migration status in Australia. The Tribunal concluded that the decision under review was flawed and should be set aside and remitted for reconsideration. The Tribunal found that the applicant met the criteria for a Subclass 050 (Bridging (General)) visa under cl 050.212(3) of Schedule 2 to the Migration Regulations 1994 (Cth).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant arrived in Australia on 3 January 2019 on a Subclass 600 tourist visa and has remained in the country since that time. The applicant has allowed his visa to cease on four separate occasions, remaining in Australia unlawfully from:·20 May 2019 to 19 November 2021·13 February 2022 until 30 April 2022·27 September 2022 until 2 April 2023·16 May 2023 until present. The applicant has made a total of six applications for bridging visas since his tourist visa expired in 2019. He has previously been granted three bridging visas on the grounds that he was making acceptable arrangements to depart Australia. He allowed the visas to cease without departing the country. The applicant supplied an Australian Federal Police National Police Certificate which reports that he has been convicted of the following criminal offences:·28 March 2023: Driving a vehicle on the road without a licence.·30 May 2023: Driving a motor vehicle while licence suspended.·6 December 2023: Four counts of driving a motor vehicle during disqualification period.·30 April 2024: Driving a motor vehicle during disqualification period.·8 May 2024: Failure to stop vehicle when directed and four counts of driving a motor vehicle during disqualification period.·5 June 2024: Driving a motor vehicle during disqualification period.·19 June 2024: Five counts of driving a motor vehicle during disqualification period and one count of failure to stop vehicle when directed.·17 July 2024: threatening violence with a group of three or more persons causing fear. The applicant commenced a period of imprisonment on 4 May 2024. On 3 September 2024, he applied for a bridging visa whilst in criminal detention. That visa application was refused. On 16 September 2024, he was released from criminal custody and taken into immigration detention. On 24 October 2024, the applicant lodged his sixth bridging visa application. The decision to refuse that visa is currently under review.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). In this case, the applicant was seeking to meet cl 050.212(2) and (3), however through the course of the hearing he narrowed his claim to subclause 050.212(3). The applicant does not claim to meet any of the other alternative criteria in cl 050.212. The applicant confirmed that he had no other application for merits review, judicial review or revocation of a cancellation. No such applications had been made by a member of the applicant’s family unit, or the Minister in respect to the applicant, at the time of the current bridging visa application.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.[1] It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine.[2][1] Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26].[2] Ibid, Lin at [30].

Decision

Reasons for decision

Given these findings, the appropriate course is to set the decision aside and remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:·cl 050.212(3) of Schedule 2 to the Migration Regulations 1994 (Cth).Date of hearing: 14 November 2024 Representative for the Applicant: Mr Paulo Lasalo

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.