Murphy (Migration)

[2021] AATA 670

Murphy (Migration) [2021] AATA 670 (5 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr STEPHEN MURPHY

CASE NUMBER:  1837416

DIBP REFERENCE(S):  BCC2018/4716812

MEMBER:Michelle East

DATE:5 February 2021

PLACE OF DECISION:  Perth

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

Statement made on 05 February 2021 at 11:39am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful non-citizen – acceptable arrangements to depart Australia – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 73
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.221, 050.222

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 Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 24 October 2018. 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 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.211, cl.050.212. cl.050.221 and cl.050.222.

3. The decision to refuse to grant the visa was made on 4 December 2018 on the basis that the applicant did not satisfy cl.050.222 of the Regulations.

4. The applicant was invited to attend a hearing before the Tribunal, by telephone on 5 February 2021.  The hearing invitation sent by email to the applicant’s last notified email address requested the applicant to provide the Tribunal with his contact number for the purposes of attending the hearing at least 7 days prior to the scheduled hearing.

5. Follow up emails were sent to the applicant at his email address on 27 January and 1  February 2021.

6. No response was received and the Tribunal was unable to contact the applicant for the purposes of the hearing.

7. The Tribunal has reviewed its records and is satisfied that satisfactory attempts were made to contact the applicant and advise him of his hearing date.  As the applicant did not contact the Tribunal with his details and therefore the hearing was unable to proceed, the Tribunal has decided to determine the matter on the papers.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant meets and continues to meet the time of application criteria at the time of decision.

10. The applicant arrived in Australia on a sub-class 417 visa on 14 November 2011.  That visa ceased naturally on 12 November 2012.  He was then granted a further visa of the same subclass which was valid until 5 September 2013.

11. The applicant was then granted a subclass 457 visa on 5 September 2013 which ceased naturally on 5 September 2017.  He was granted a subclass 601 visa on 11 November 2017 which ceased on 29 March 2018.  After that visa ceased, he applied for a bridging visa which is the visa the subject of this review.

12. After the application for review was lodged with the Tribunal the applicant was granted a bridging visa E for the purposes of making arrangements to depart Australia.  That visa was subject to the conditions of no work, no study, the need to notify a change of address, the requirement to present a valid passport and the requirement to show a ticket for travel to a country other than Australia.  That visa ceased on 25 February 2019 and since that time the applicant has been an unlawful non-citizen.

    Immigration status of the applicant - cl.050.211

13. Clause 050.211 is met if, at the time of application:

    (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

    (2)the applicant was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17). 

14. The applicant must continue to satisfy this criterion at the time of decision: cl.050.221. 

15. The Tribunal is satisfied that at the time of the application the applicant was an unlawful non-citizen.  Accordingly, the applicant meets cl.050.211(1).

16. The Tribunal is further satisfied that the applicant was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17). 

17. Accordingly, the applicant meets cl.050.211(2).

18. Therefore, the applicant meets cl.050.211.

    The grounds for seeking the visa - cl.050.212

19. 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.

20. The applicant did not specify in his visa application any grounds for seeking the visa.  The delegate in the decision record noted that he was satisfied that the applicant had to be interviewed by an authorised officer.  Attempts were made at that time to contact the applicant which were unsuccessful.  The delegate therefore was not satisfied cl.050.222 was met.

21. A subsequent bridging visa E was granted to the applicant on 17 January 2019 for the purposes of making acceptable arrangements to depart Australia.  That visa expired on 31 January 2019.

22. The Tribunal has received no further communication from the applicant and is unable to determine the grounds for seeking the visa.  Whilst it could be inferred this is the basis of the application, that is insufficient.

23. The Tribunal is not satisfied the applicant meets any of the alternatives set out in cl.050.212(2)-(9).

24. If the Tribunal is wrong in its approach and it could reasonably be inferred that the application was on the basis of him making acceptable arrangements to depart Australia, the Tribunal is not satisfied the applicant meets this criteria.

25. 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 Department’s Procedures Advice Manual 3 (PAM3), whilst not binding on the Tribunal, nevertheless provides 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]).

26. The applicant is still onshore as an unlawful non-citizen.  No reasonable excuse has been provided for his failure to return to Ireland.  The timing of this application preceded the outbreak of the COVID-19 pandemic and no reason is given for the failure to return.

27. The Tribunal therefore finds that the applicant’s intentions in making any arrangements to depart were not genuine.

28. For these reasons, the Tribunal is not satisfied that at the time of application the applicant was making acceptable arrangements to depart Australia. Therefore, the applicant does not meet. cl.050.212(2).

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

30. 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

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

    Michelle East
    Member