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

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.
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.
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.
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).
For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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
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.
In this…

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 Sawau (Migration)

Details

AGLC: Sawau (Migration) [2021] AATA 2193
Case: [2021] AATA 2193
Decision Date: 21 May 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the applications of Sawau and another applicant for Bridging E (Class WE) visas. The core dispute concerned whether the applicants met the primary criteria for the grant of such a visa, specifically the requirement to be making or be the subject of acceptable arrangements to depart Australia.

The Tribunal was required to determine if the applicants satisfied subclause 050.212(2) of the Migration Regulations 1994, which mandates that an applicant be making or be the subject of acceptable arrangements to depart Australia. This criterion needed to be met at the time of the visa application and continue to be satisfied at the time of the decision. The Tribunal also considered whether the applicants' intentions in making any departure arrangements were genuine, drawing guidance from case law and the Department's Procedures Advice Manual.

The Tribunal reasoned that while the initial delegate was satisfied the applicants met the criterion based on having no outstanding migration matters, this conclusion was unclear and undermined by other evidence. The applicants had previously been granted Bridging E visas on multiple occasions for departure, but had breached conditions requiring them to depart Australia or present a valid travel ticket. Crucially, both applicants had stated shortly after their current visa applications that they were not leaving Australia and would not comply with the departure condition. Their subsequent explanation that they did not understand migration law and relied on others' advice did not satisfy the Tribunal that they were making or were the subject of acceptable arrangements to depart Australia at the time of their application. Furthermore, the applicants did not meet the criteria for a Bridging (Protection Visa Applicant) visa.

Consequently, the Tribunal affirmed the decisions not to grant the applicants Bridging E (Class WE) visas.

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 decisions under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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 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. 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 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]). 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’. 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. 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

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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