Wang (Migration) - [2022] AATA 2728

Wang (Migration) [2022] AATA 2728 (28 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yanxin Wang
REPRESENTATIVE:  Mr Chang Liu
CASE NUMBER:  2209077
Home Affairs REFERENCE(S):               BCC2022/2221315
MEMBER:David Barker
DATE:28 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 28 June 2022 at 1:53pm
CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful Non-Citizen – applicant made no genuine attempt to make arrangements to depart Australia – applicant made no attempt to regularise his visa status for a ten year period – not satisfied that the applicant currently has the documentation required to depart Australia – not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to him –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 189
Migration Regulations 1994, Schedule 2, cls 050.222, 050.223, Schedule 8
CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
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 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 16 June 2022. 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 050.223.
The decision to refuse to grant the visa was made on 21 June 2022 on the basis that the delegate was not satisfied that the applicant would, if her were to be released into the community on a Bridging visa E (BVE), comply with conditions which would be imposed upon the visa. The applicant appeared before the Tribunal by Video from Perth, WA on 27 June 2022. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant’s identified representative did not participate in the hearing. The applicant was asked why this was the case and he indicated that his representative had told him he was busy. The applicant told the Tribunal that he would see how he went at hearing and in relation to the overall review without a representative present at hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicant is making, or is the subject of, acceptable arrangements to depart Australia; and if so, whether he will abide by visa conditions…

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 Wang (Migration)

Details

AGLC: Wang (Migration) [2022] AATA 2728
Case: [2022] AATA 2728
Decision Date: 28 June 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant, a national of China, who sought review of a decision not to grant him a Bridging E (Class WE) visa. The applicant had been unlawfully in Australia for approximately ten years, having overstayed his student visa in 2011. He had been located by police on two occasions, the latter resulting in his detention, after which he applied for the bridging visa on the grounds that he was making arrangements to depart Australia.

The Tribunal was required to determine two key issues: first, whether the applicant was making, or was the subject of, acceptable arrangements to depart Australia; and second, if he were granted a bridging visa and released into the community, whether he would abide by any imposed conditions. The applicant's immigration history revealed a prolonged period of unlawful status, with no genuine attempt to regularise his position or depart Australia for a decade.

In reaching its decision, the Tribunal noted that the applicant had agreed with the accuracy of his immigration history during an interview. While he stated his intention to depart Australia, the Tribunal was not satisfied that he had made genuine arrangements to do so, nor that he would comply with the conditions of a bridging visa. The Tribunal found that the applicant had not demonstrated that he currently possessed the necessary documentation for departure.

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

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 issues in this case are whether the applicant is making, or is the subject of, acceptable arrangements to depart Australia; and if so, whether he will abide by visa conditions if he were to be granted a BVE and released into the community. (cl.050.223). The applicant’s visa history The following information about the applicant’s immigration history is taken from: the delegate’s decision record (the decision record), a copy of which was provided to the Tribunal by the applicant, from the applicant’s evidence and from other material before the Tribunal. The applicant is a national of China. He is 31 years old. The applicant’s immigration history as detailed in the delegate’s decision is as follows. The applicant first entered Australia on 23 November 2008 holding a subclass 571 student visa which was valid until 15 March 2011. The applicant remained unlawfully in Australia between 16 March 2011 and 23 May 2011, before applying for a subclass 572 student visa on 23 May 2011. Whilst this application was being considered, the applicant was granted a Bridging visa. The subclass 572 student visa was refused by the Department on 7 September 2011. He requested a review of this decision and on 25 June 2012 the Migration Review Tribunal (MRT) affirmed the decision to refuse the student visa application. The applicant’s bridging visa ceased on 1 August 2012. The applicant has remained unlawfully in Australia since then. The applicant was located by WA police during a routine traffic stop on 26 January 2022. The applicant was cautioned in relation to his unlawful status and directed to apply for a bridging visa online to regularise his status. The applicant did not do so, and on 9 June 2022 the applicant was located via another routine traffic stop and detained under s 189 of the Act. On 16 June 2022 applicant applied for the BVE on the grounds he is making, or is the subject of, arrangements to depart Australia[1]. The decision record notes that the applicant participated, with the assistance of a Mandarin interpreter, in a BVE interview 20 June 2022, at which time the applicant’s immigration history, as outlined above was put to him and he agreed that it was accurate. The applicant stated that he is applying for a BVE for the purpose of departing Australia. The applicant had earlier, on 10 June 2022 participated in a Located Person Interview (LPI).[1] Clause 050.212(2).The Hearing The following is a summary of the applicant’s evidence at hearing. It is not a transcript. At the start of the hearing the Tribunal explained that it has to consider the issue regarding the ‘time of application’ criteria. In response to a question from the Tribunal, the applicant confirmed that he applied for the BVE on the basis of making arrangements to depart Australia. He confirmed that this remains his intention and that there is no other basis for his BVE application.

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.David BarkerMember

Ratio Decidendi

Legal Principle Established

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