1814191 (Migration) - [2018] AATA 2379

1814191 (Migration) [2018] AATA 2379 (25 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1814191
MEMBER:Robert Wilson
DATE:25 May 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Statement made on 25 May 2018 at 10:21am

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Whether the applicant will abide by visa conditions – Unlawful non-citizen – Breach of no work condition – Applicant did not advise Department of residential address – Likelihood of departing Australia by specified date – Friend willing to act as surety/guarantor – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 73, 116, 189, 269
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.221, 050.223, 050.613A, 051.211
CASES
Applicant 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).
The applicant, age [age], applied for the visa on 10 May 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 1994 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.223.
The decision by the Department to refuse to grant the visa to the applicant and the decision relating to requiring a security was made on 14 May 2018. The applicant appeared before the Tribunal on 22 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr [A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Tamil Nadu) and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
The issue in this case is whether cl.050.212 and cl.050.223 is met.
The grounds for seeking the visa – cl.050.212
At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)–(9). The applicant must continue to satisfy…

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 1814191 (Migration)

Details

AGLC: 1814191 (Migration) [2018] AATA 2379
Case: [2018] AATA 2379
Decision Date: 25 May 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Bridging E (Class WE) visa, Subclass 050 (Bridging (General)), made by an applicant who had overstayed their Electronic Travel Authority and was an unlawful non-citizen. The applicant had also applied for a Subclass 051 (Bridging (Protection Visa Applicant)) visa, but did not meet the eligibility criteria for that visa. The primary dispute concerned whether the applicant met the criteria for the Bridging E visa, specifically whether they would abide by visa conditions.

The Tribunal was required to determine if the applicant met the criteria under cl.050.212 and cl.050.223 of the Migration Regulations 1994. Clause 050.212(3) requires that the applicant has made a valid application for a substantive visa that has not been finally determined, or that the Tribunal is satisfied the applicant would apply for such a visa within a specified period. Clause 050.223 requires the Tribunal to be satisfied that the applicant will comply with the conditions of the visa.

The Tribunal found that the applicant met cl.050.212(3) as they had a pending application for a protection visa, which is a substantive visa, and this application had not been finally determined. However, the Tribunal was not satisfied that the applicant would abide by the conditions of a Bridging E visa under cl.050.223. This was based on the applicant's history of breaching their ETA conditions by working, becoming an unlawful non-citizen, and their subsequent withdrawal of a request for voluntary removal from Australia. The applicant expressed fear of returning to Malaysia due to potential persecution related to political activities, indicating an unwillingness to depart Australia voluntarily.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa, as the applicant failed to satisfy the criterion regarding abiding by visa conditions.

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 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. The issue in this case is whether cl.050.212 and cl.050.223 is met.The grounds for seeking the visa – cl.050.212 At the time of the visa application, the applicant 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 applicant is seeking to meet cl.050.212(3). For the reasons below, the applicant meets cl.050.212.Substantive visa application 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. At the time of application the applicant was the subject of a substantive visa application, a protection visa, that had not been finally determined: an interview has been booked with the Department on 24 May 2018. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act. Accordingly, the applicant meets cl.050.212(3).Whether the applicant will abide by conditions – cl.050.223 The applicant came to Australia on 2 March 2018 as the holder of an Electronic Travel Authority (ETA) and he has not departed since. His ETA allows him to remain in Australia for three months. [In] April 2018, the applicant was located working in breach of his ETA by Australia Border Force (ABF) officers. His ETA was cancelled under section 116 of the Act. As a result he became an Unlawful Non-Citizen (UNC). He is currently in [a Detention Centre] where he remains. The applicant gave evidence at the hearing, stating that he has a [child] aged [age] who lives with the applicant’s mother in Malaysia. The applicant’s wife is living alone but she visits the [child]. [In] April 2018 he signed a Request for Removal from Australia Form where he indicated that he wished to be removed from Australia in accordance with the Act. He later withdrew this request [in] May 2018. The representative indicated that the applicant was apprehended while working. He was scared here. He rang his mother and she said it was not appropriate to return. He thinks he will be ill-treated or flogged if he returns to Malaysia. She asked him not to come to Malaysia as there is a problem to his life: the government. He said the leader broke the law to take people and they would be in danger. He supported a [party]. He acted in a demonstration and in Malaysia you can be arrested without trial. The applicant told the Tribunal that when there was no threat to him, he would be able to go to Malaysia. He will not agree to a voluntary return/removal. He does not have any assets in Australia other than [amount] Malaysian dollars.

Decision

Reasons for decision

For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa. DECISION The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.Robert WilsonMember

Ratio Decidendi

Legal Principle Established

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