Ng (Migration) - [2021] AATA 2386

Ng (Migration) [2021] AATA 2386 (5 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2105600
MEMBER:Nicole Burns
DATE:5 May 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 05 May 2021 at 2:44pm

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) –no valid substantive visa application pending with the Department – intention to apply for a partner visa – no outstanding migration matters – no intention to depart Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 73, 195, 359AA, 376
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221
CASES
Liu v Minister for Immigration & Anor [2008] FMCA 725
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.
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 Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).
The applicant is national of Malaysia, born on [date of birth]. He applied for the visa on 26 April 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 (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 April 2021 on the basis that the delegate was not satisfied the applicant met any of the grounds for applying for the visa set out in cl.050.212(2)-(9).
The applicant appeared before the Tribunal via video link from a detention centre on 5 May 2021. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
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 of cl.050.212.
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). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221. For the reasons below, the applicant does not meet cl.050.212.
The applicant is relying on satisfying subclause 050.212(3) which 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…

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 Ng (Migration)

Details

AGLC: Ng (Migration) [2021] AATA 2386
Case: [2021] AATA 2386
Decision Date: 5 May 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application of Mr Ng for a Bridging E (Class WE) visa. The dispute concerned whether Mr Ng met the criteria for the grant of this visa, specifically clause 050.212 of the Migration Regulations 1994.

The Tribunal was required to determine if Mr Ng satisfied clause 050.212(3), which requires an applicant to have made a valid application for a substantive visa that has not been finally determined, or to satisfy the Tribunal that they would apply for such a visa within a specified period. A substantive visa is defined as any visa other than a bridging, criminal justice, or enforcement visa. The Tribunal also had to consider whether Mr Ng continued to satisfy this criterion at the time of the decision, as per clause 050.221.

The Tribunal found that Mr Ng did not have a valid substantive visa application pending. While he had applied for a protection visa, it was refused, and he had not sought a review of that decision within the statutory timeframe. Mr Ng stated his intention to apply for a partner visa, but the Tribunal had concerns about the credibility of this intention. He claimed he needed to work to save for the application fees, yet had previously stopped working due to his visa status and homelessness. He also stated he had exhausted his savings and could not afford legal assistance, and provided conflicting information regarding his sister's ability to support him.

Consequently, the Tribunal affirmed the decision not to grant Mr Ng a Bridging E (Class WE) visa. The Tribunal also noted that Mr Ng did not meet the criteria for a Bridging (Protection Visa Applicant) visa (Subclass 051).

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 of cl.050.212.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). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221. For the reasons below, the applicant does not meet cl.050.212. The applicant is relying on satisfying subclause 050.212(3) which 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. ‘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 application being made: s.5(9) of the Act. There is no evidence before the Tribunal that the applicant has a valid substantive visa application pending with the Department. At hearing the applicant confirmed he had applied for a protection visa on 18 March 2021, which was refused on 25 March 2021. Although claiming in the BVE application form he had sought a review of his protection visa refusal, at hearing he confirmed he did not because he claimed to not realise that was an option at the time. He gave no indication that he plans to seek review; Department and Tribunal records do not indicate he has sought a review; and the statutory time period in which he is able to lodge a review application has passed. The applicant said he applied for the BVE to be released into the community in order to work and then apply for a partner visa. He told the Tribunal (and the Department at the visa application stage) he intends to apply for a partner visa sponsored by his Australian partner, [Ms A]. At hearing he said they have been in a relationship for around eight months although have never lived together. She visits him most weeks in detention and they have made plans to move to the country if he is released where she will support his food and rent and other costs. His plan is to find [work] to save enough money to pay for the partner visa application process. He said they plan to marry. The Tribunal has several concerns about the applicant’s stated intention to apply for a partner visa based on his claimed relationship with [Ms A], as discussed at hearing. His evidence to the Tribunal is that once he is released from detention, he plans to [work] to pay for the application fees which he has calculated will take two months. Yet he also told the Tribunal he stopped work in Australia in August 2019 when his wife left him because he did not have a visa and found it difficult to get (and maintain) work without one. He was homeless at times. He told the Tribunal he exhausted all his savings and he is unable to afford a lawyer to assist with the partner visa application. In his BVE application he stated that his sister is a permanent resident and could support him however the applicant did not mention his sister at hearing and has provided no further evidence of her alleged support. Furthermore, at interview with the delegate (as noted in the decision record, a copy of which the applicant provided to the Tribunal on review) the applicant stated that he had not been in contact with his sister for a year and a half and did not know her address or contact details.

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.Nicole BurnsMember

Ratio Decidendi

Legal Principle Established

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