1812514 (Migration) - [2018] AATA 2237

1812514 (Migration) [2018] AATA 2237 (5 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1812514
MEMBER:James Lambie
DATE:5 June 2018
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 05 June 2018 at 4:11pm
CATCHWORDS
Migration – Refusal – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Unlawful Non-Citizen – Criminal offences – Student Dependent visa cancelled due to relationship breakdown– Abide by future visa conditions – Credibility concerns – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 75, 269, 359A
Migration Regulations 1994, r 2.24, Schedule 2, cls 051.211, 050.221, 050.223, Schedule 8
CASES
Applicant VAAN of 2001 v MIMA (VAAN) (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.
Mr [A] applied for the visa on 23 April 2018. 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.050.223.
The decision to refuse to grant the visa was made on 27 April 2018 on the basis that the delegate could not be satisfied that the applicant would abide by conditions 8101, 8401 and 8506. The applicant appeared before me on 10 May 2018 to give evidence and present arguments. I also received oral evidence from the applicant’s wife, Mrs [A], and [mother]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
Mr [A] was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, I have concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether, if granted a Bridging E (class WE) visa, Mr [A] would comply with conditions imposed on it, namely:
8101 – the holder must not engage in work in Australia;

8207 – the holder must not engage in any studies or training in Australia;

8401 – the holder must report (a) at a time or times; and (b) at place; specified by the Minister for the purpose; and

8506 – the holder must notify…

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 1812514 (Migration)

Details

AGLC: 1812514 (Migration) [2018] AATA 2237
Case: [2018] AATA 2237
Decision Date: 5 June 2018

CaseChat Overview and Summary

The applicant, Mr [A], sought review of a decision not to grant him a Bridging E (Class WE) visa. Mr [A] was an unlawful non-citizen in Australia, having been in that status since June 2012 following the cancellation of his Student Dependent visa due to a relationship breakdown. He had also been arrested and charged with criminal offences, and was currently in immigration detention. The Tribunal was required to determine whether Mr [A] would comply with the conditions that could be imposed on a Bridging E visa, specifically concerning work, study, reporting, and notification of address changes.

The central legal issue before the Tribunal was whether it was satisfied, pursuant to clause 050.223 of the Migration Regulations 1994, that Mr [A] would abide by any conditions imposed on a Bridging E visa if granted. In assessing this, the Tribunal was guided by principles established in cases such as *Applicant VAAN of 2001 v MIMA* and *Liu v MIAC*. These principles require consideration of the applicant's past immigration history, including any breaches of immigration laws, the significance and wilfulness of those breaches, any mitigating circumstances, and evidence of contrition. The Tribunal also considered the potential for a security to be imposed to ensure compliance, and the purpose of such a security in securing adherence to visa conditions.

The Tribunal considered Mr [A]'s history, noting that he had been an unlawful non-citizen since 2012, and that his separation and divorce, which led to the cancellation of his previous visa, had not been brought to the Department's attention by him. Furthermore, Mr [A] had been charged with criminal offences and was in immigration detention. The Tribunal found that Mr [A]'s past conduct and circumstances did not provide sufficient assurance that he would abide by the conditions of a Bridging E visa. Consequently, the Tribunal affirmed the decision not to grant Mr [A] a Bridging E (Class WE) visa. The Tribunal also noted that Mr [A] did not meet the eligibility 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, I have concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether, if granted a Bridging E (class WE) visa, Mr [A] would comply with conditions imposed on it, namely:8101 – the holder must not engage in work in Australia;8207 – the holder must not engage in any studies or training in Australia;8401 – the holder must report (a) at a time or times; and (b) at place; specified by the Minister for the purpose; and8506 – the holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.Whether the applicant will abide by conditions - cl.050.223 Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on it. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject. When considering cl.050.223, the Tribunal must consider which conditions, if any, should be imposed and whether it is satisfied that the applicant would abide by those conditions. In deciding the question of whether the applicant would abide by conditions imposed, the Tribunal is to consider the likely conduct of the applicant. In that context, relevant considerations may include the applicant’s past immigration history, in particular any previous breaches of immigration laws, the significance of the migration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach and whether the applicant had shown any contrition for their unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16]. If the Tribunal is satisfied that the applicant will only abide by the conditions if given a financial incentive to do so, it is necessary to consider the security decision made pursuant to s.269 of the Act: VAAN at [10]. Conversely, if not satisfied that an applicant would abide by the conditions attached to a bridging visa even where there is a financial incentive to do so, the occasion for the imposition of a security does not arise: VAAN per Finklestein J at [21]-[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37]. In considering the security decision, the amount of security should be a sum that is designed to secure compliance with the relevant conditions, having regard to the conditions that must be complied with, and the particular circumstances of the person bound by the requirements, notably their financial position: VAAN at [27]. Mr [A] is currently in immigration detention, having been arrested [in] December 2017. He has been charged with [criminal offences]. He was granted bail [in] March 2018 on [amount] security and 8 conditions. I have given careful consideration to Mr [A]’s history and circumstances, and to the evidence given and submissions made on his behalf. He arrived in Australia with his then wife on 5 July 2008 as a dependent on a [Student] visa. That visa was cancelled on 19 June 2012 as a consequence of his divorce. He had separated from his wife in 2010 and divorced in 2011: the separation and divorce did not come to the attention of the Department by any action of Mr [A]. In the event, since 19 June 2012 he has been in Australia as an unlawful non-citizen.

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.James LambieSenior Member

Ratio Decidendi

Legal Principle Established

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