Sawau (Migration)

[2021] AATA 2193

Sawau (Migration) [2021] AATA 2193 (21 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ameniasi Drodrolagi Sawau
Mrs Pasemaca Takayawa Drodrolagi

CASE NUMBER:  1909488

DIBP REFERENCE(S):  CLF2016/64000

MEMBER:James Silva

DATE:21 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Bridging E (Class WE) visas.

Statement made on 21 May 2021 at 1:17pm

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful Non-Citizen – no outstanding migration matters – applicant made no attempt to make arrangements to depart Australia –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 73
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.223

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 decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Bridging E (Class WE) visas under s.73 of the Migration Act 1958 (the Act.

2. The applicants applied for the visas on 21 March 2019. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, the applicants are 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 and cl.050.223.

3. The decisions to refuse to grant the visas were made on 8 April 2019 on the basis that the delegate was not satisfied that the applicants would comply with visa condition 8511, to present a valid ticket for travel outside Australia; cl.050.223. However, the delegate was satisfied that the applicants met the primary criteria at the time of application and the time of decision, on the basis that they were subject to acceptable arrangements to depart Australia: cl.050.211 and cl.050.221.

4. The applicants appeared before the Tribunal on 21 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted by teleconference, with the assistance of an interpreter in the Fijian and English languages. The applicants are unrepresented in this matter, although they stated at hearing that they recently consulted a lawyer about their migration options, and this person recommended they see a specialist migration agent. In this context, the Tribunal alerted the applicants that they were entitled not to disclose any communications between themselves and any legal adviser (legal professional privilege).

5. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicants meet the primary criteria for the grant of a Bridging E visa.

   The grounds for seeking the visa - cl.050.212

7. At the time of the visa application, the applicants 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.

8. In this case, the applicants are seeking to meet cl.050.212(2), on the basis of acceptable arrangements to depart Australia. They do not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the applicants do not meet cl.050.212.

   Acceptable arrangements to depart Australia

9. 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: Chen v 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]).

10. In the decision record of 8 April 2019, which the applicants provided to the Tribunal, the delegate expressed satisfaction that the applicants met cl.050.212(2) at the time of application (21 March 2019). He found that ‘because neither applicant has any ongoing Immigration matters, … [they are] the subject of acceptable arrangements to depart Australia’. That logic is unclear, and it is undermined by other information in the decision.

    §  The record notes that the applicants had been granted Bridging E visas on four previous occasions, on ‘departure grounds’, on 16 August 2017, 25 January 2018, 1 March 2018 and 18 April 2018. On each occasion, they had breached visa conditions requiring them to ‘present at valid ticket for travel outside Australia’ or to depart Australia.

    §  The delegate also recorded the applicants’ comments at interview (the first-named applicant on 26 March 2019, and the second-named applicant on 27 March 2019). In both interviews, just days after making their Bridging E visa applications, they stated that they are not leaving Australia and would not be able to comply with visa condition 8511 ‘present a valid ticket’.

11. At hearing on 21 May 2021, the applicants stated that they did not understand the migration law and found it confusing. They were simply relying on others’ advice. They did not dispute the Tribunal’s observation that they did not appear to have been arranging to depart Australia at that time.

12. For these reasons, the Tribunal is not satisfied that at the time of application the applicants were making or were the subject of acceptable arrangements to depart Australia. Therefore, the applicants do not meet cl.050.212(2).

    The other grounds for seeking the visa - cl.050.212

13. The Tribunal discussed with the applicants the other alternatives set out in cl.050.212(2)-(9), to check whether they could meet the primary criteria on any other grounds.

    Substantive visa application

14. Subclause 050.212(3) 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.

15. The applicants confirmed at hearing that, at the time of application on 21 March 2019, they had not made any substantive visa application and had not been planning to. The first-named applicant stated briefly that they recently consulted a lawyer, who had recommended they speak with a specialist migration lawyer. They might try to make an application for a ‘business visa’.

16. Based on the available material, the Tribunal is not satisfied that at the time of application, the applicants had made or would have made a valid application for a substantive visa that can be granted in Australia.

17. Accordingly, the applicants do not meet cl.050.212(3).

    Judicial review, merits review, s.137K revocation

18. There is no evidence that either applicant was subject at the time of application to an application for judicial review, merits review or s.137 revocation application, of any kind; or that he is member of a family unit of a person involved in relevant proceedings. The applicants therefore do not meet cl.050.212(3A), cl.050.212(4), cl.050.212(4AA) or cl.050.212(9).

    Consequential cancellation (review/revocation of primary cancellation)

19. There is no evidence that the applicants held visas that were cancelled pursuant to certain sections of the Act, and that an application for review or revocation of the visa cancellation has been or will be made. The applicants therefore do not meet cl.050.212(5) or cl.050.212(5A).

    Court declaration / review of citizenship decision

20. There is no evidence that the applicants have made an application for a Court declaration or for a review of a citizenship decision. Accordingly, the applicants do not meet cl.050.212(4AB) or cl.050.212(4AB).

    Ministerial intervention

21. There is no evidence that the applicants had an ongoing, first request to the Minister of any kind (such as a request to determine that s.48A of the Act does not apply, to substitute a more favourable decision following a visa refusal or cancellation, or under relevant sections of the Act). The Minister has also not substituted a decision, in effect to grant them visas, under relevant sections of the Act. The Tribunal is therefore not satisfied that the applicants meet the requirements on the grounds of a Ministerial intervention request. The applicants therefore do not meet cl.050.212)(5B), (6), (6AA) or (6B).

    Compelling need to work

22. There is no claim or evidence that either applicant held a Bridging E visa at the time of application or any time since. On the contrary, they confirmed at hearing that they have been without visas since 2018. It follows that they cannot meet cl.050.212(6A) or cl.050.212(8) as the holder(s) of a Bridging E visa, on the grounds of having a compelling need to work. The applicants therefore do not meet  cl.050.212(6A) or (8).

    Criminal Detention  

23. The applicants were not in criminal detention at the time of application, or at any time. Accordingly, the applicants do not meet cl.050.212(7).

    Summary

24. As the applicants do not meet any of the alternatives set out in cl.050.212(2)-(9), they do not meet cl.050.212 at the time of application. As this is an essential requirement for the grant of a Subclass 050 visa, they cannot be granted the visa.

25. Given the Tribunal’s analysis and findings, it is unnecessary to determine what conditions would be imposed on the visa, if granted, and whether the applicants would abide by the conditions: cl.050.223.

    Conclusion

26. For these reasons, the applicants do not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

27. The visa applications are also applications for Subclass 051 (Bridging (Protection Visa Applicant)) visas. The applicants are not relevant eligible non-citizens as set out in cl.051.211 of Schedule 2 to the Regulations and therefore do not meet the requirements for the grant of that visa.

    DECISION

28. The Tribunal affirms the decisions not to grant the applicants Bridging E (Class WE) visas.

    James Silva
    Member