1809456 (Migration) - [2018] AATA 1955

1809456 (Migration) [2018] AATA 1955 (12 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER: 1809456
MEMBER:Jason Pennell
DATE:12 April 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:
·cl.050. cl.050.223 of Schedule 2 to the Regulations
The Tribunal also directs the primary decision maker
·conditions 8101 (no work), 8207 (no study) 8401 (reporting obligations), 8506 (notify change of address), and 8564 (no criminal conduct) will be imposed if the visa is granted; and
·to require a security of $25,000.00 for compliance with the conditions.

Statement made on 12 April 2018 at 11.09

CATCHWORDS

Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – History of non-compliance with visa conditions – Whether the applicant will abide by conditions in future – Financial support available to applicant – Various conditions imposed – Significant security bond required – Decision remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5, 116, 269, 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212(3), 050.221, 050.222, 050.223, 050.612A, 050.614, 050.617, 051.211, Schedule 8, Conditions 8101, 8401, 8506, 8564

CASES
VAAN of 2001 v MIMA (2002) 70 ALD 289

Liu v MIAC [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) and a decision made by an authorised officer relating to requiring a security under s.269 of the Act.
The applicant applied for the visa on 27 March 2018. At that time Class WE contained two subclasses being 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.050.223.
The decision to refuse to grant the visa was made on 4 April 2018 on the basis that the applicant did not meet the requirements in clause 050.223 in Schedule 2 of the Regulations. That is the delegate was not satisfied that the applicant will abide by the conditions imposed on the visa. The applicant appeared before the Tribunal on 11 April 2018 to give evidence and present arguments. The applicants [partner] attended the hearing in support of the applicant but did not give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the…

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 1809456 (Migration)

Details

AGLC: 1809456 (Migration) [2018] AATA 1955
Case: [2018] AATA 1955
Decision Date: 12 April 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the application of a person seeking a Bridging E (Class WE) visa, subclass 050 (Bridging (General)). The applicant had a history of non-compliance with visa conditions, which formed the central dispute in the proceedings.

The primary legal issue before the Tribunal was whether the applicant would abide by the conditions of a future visa, given their past conduct. This involved assessing the applicant's financial support and the appropriateness of various conditions, including a significant security bond, that might be imposed on the visa.

The Tribunal's reasoning focused on the applicant's past non-compliance and the need to be satisfied that future compliance was likely. It considered the available financial support and the conditions that would be necessary to mitigate risks. Ultimately, the Tribunal found that it could not be satisfied on the evidence before it and remitted the decision for reconsideration.

Orders