1816101 (Migration) - [2018] AATA 2702

1816101 (Migration) [2018] AATA 2702 (13 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1816101
MEMBER:Nicole Burns
DATE:13 June 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Statement made on 13 June 2018 at 10:56am

CATCHWORDS
Migration – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – Whether the applicant will comply with future visa conditions – Criminal record – Inconsistent evidence – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 73, 269
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.221, 050.223, Schedule 8, Conditions 8101, 8207, 8401, 8505, 8564
CASES
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Applicant VAAN of 2001 v MIMA [2002] FCA 197
Tennakoon v MIMIA [2001] FCA 615
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 applied for the visa on 28 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 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.223.
The decision to refuse to grant the visa was made on 31 May 2018 on the basis that that the delegate was not satisfied the applicant would abide by relevant visa conditions.
The applicant appeared before the Tribunal on 8 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by his registered migration agent. He did not attend the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
At the Tribunal hearing the applicant confirmed his immigration history and other matters as set out in the delegate’s decision record, summarised as follows.
·The applicant first came to Australia on 1 February 2008 as the holder of a Student visa (subclass 573) as a dependent. He was granted other Student visas as a dependent, the last one on 21 October 2014 (Subclass 572) which ceased on 15 July 2015. The applicant then became an unlawful non-citizen.
·On 28 February 2017 the applicant was located by [State 1] police and detained.
·The applicant’s application for a Partner visa (UK-820/BS-801) was found to be invalid on 25 May 2017.
·The applicant was…

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 1816101 (Migration)

Details

AGLC: 1816101 (Migration) [2018] AATA 2702
Case: [2018] AATA 2702
Decision Date: 13 June 2018

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa, subclass 050 (Bridging (General)). The applicant had a complex immigration history in Australia, including periods as an unlawful non-citizen and interactions with law enforcement. The applicant's application for a Protection visa had been refused, and a review of that refusal was pending before the Tribunal. The Tribunal was required to determine whether the applicant met the criteria for the grant of a Bridging E visa.

The primary legal issues before the Tribunal were whether the applicant continued to satisfy the time of application criteria under clause 050.221, and crucially, whether the applicant would abide by any conditions imposed on a Bridging visa, as required by clause 050.223. The Tribunal also considered, but ultimately dismissed, an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa, finding the applicant did not meet the eligibility criteria for that subclass.

In its reasoning, the Tribunal affirmed that the applicant met the criteria under clause 050.221, as they continued to satisfy the requirements of clauses 050.211 and 050.212 at the time of the decision. However, the Tribunal was not satisfied that the applicant would abide by the conditions of a Bridging visa under clause 050.223. This conclusion was based on the applicant's immigration history, which included breaches of immigration laws and periods of unlawful status. The Tribunal applied the principles from *Applicant VAAN of 2001 v MIMA* (2002) 70 ALD 289, considering the applicant's past conduct, the significance and wilfulness of any breaches, and the absence of mitigating circumstances or contrition.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) 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 At the Tribunal hearing the applicant confirmed his immigration history and other matters as set out in the delegate’s decision record, summarised as follows. ·The applicant first came to Australia on 1 February 2008 as the holder of a Student visa (subclass 573) as a dependent. He was granted other Student visas as a dependent, the last one on 21 October 2014 (Subclass 572) which ceased on 15 July 2015. The applicant then became an unlawful non-citizen.·On 28 February 2017 the applicant was located by [State 1] police and detained.·The applicant’s application for a Partner visa (UK-820/BS-801) was found to be invalid on 25 May 2017.·The applicant was granted a Criminal Justice Stay (CJS) visa (ZB-951) on 7 July 2017 and released from detention.·On 31 January 2018 the applicant’s CJS visa was cancelled and the applicant became an unlawful non-citizen.·On 17 March 2018 the applicant was located by [State 1] police and detained.·On 28 March 2018 the applicant applied for a Bridging visa (WE-050) then withdrew the application.·On 24 May 2018 the applicant’s application for a Protection visa (XA-866) was refused.·The applicant sought a review of the decision to refuse to grant him the Protection visa with the Tribunal (differently constituted) on 24 May 2018, which is pending.Whether the applicant continues to satisfy the time of application criteria - cl.050.221 Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision. On the basis of his oral evidence before the Tribunal, confirmed in Departmental and Tribunal records, the Department refused the applicant’s Protection visa application on 24 May 2018 and the applicant lodged a review of that decision with the Tribunal on the same day, which has not yet been finalised. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl.050.211 and 050.212 and therefore meets cl.050.221.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].

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.Nicole BurnsMember

Ratio Decidendi

Legal Principle Established

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