1818478 (Migration) - [2018] AATA 3693

1818478 (Migration) [2018] AATA 3693 (4 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1818478
MEMBER:Paul Windsor
DATE:4 July 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.050.223 of Schedule 2 to the Regulations; and
The Tribunal also directs the primary decision maker
·to indicate to the applicant that conditions 8101, 8401, 8506 and 8564 will be imposed if the visa is granted; and
·to require a security of $20,000 for compliance with the conditions.

Statement made on 04 July 2018 at 10:24am
CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Unlawful Non-Citizen – Criminal offences – Failed to comply with previous visa conditions – Whether the applicant would abide by conditions imposed if visa granted – Applicant would comply with conditions if a security was obtained from family members – Decision under review remitted for reconsideration
LEGISLATION
Migration Act 1958 (Cth), ss 73, 269
Migration Regulations 1994 (Cth), Schedule 2, cls 050.223, 050.212, 050.613A, Schedule 8, Condition 8101
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. The applicant provided the Tribunal with a copy of the delegate’s decision record.
The applicant applied for the visa on 20 June 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 which requires that the delegate be satisfied that, if a bridging visa is granted, the applicant will abide by the conditions imposed on it.
The decision to refuse to grant the visa and the decision relating to requiring a security was made on 22 June 2018 on the basis that the delegate was not satisfied that the applicant would abide by the conditions that would be imposed on the bridging visa without the imposition of a security. The delegate indicates in her decision record that the applicant was asked whether he could pay a security if one was imposed and replied that he was ‘entirely reliant on his sisters financially and would not be able to…

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 1818478 (Migration)

Details

AGLC: 1818478 (Migration) [2018] AATA 3693
Case: [2018] AATA 3693
Decision Date: 4 July 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 unlawful non-citizen who had failed to comply with previous visa conditions. The central dispute concerned whether the applicant would abide by any conditions imposed on the bridging visa if it were granted.

The Tribunal was required to determine if the applicant would comply with the conditions of a bridging visa, as stipulated by clause 050.223 of the Migration Regulations. This involved assessing the applicant's likely future conduct, taking into account their immigration history, the nature and wilfulness of any previous breaches, and any mitigating circumstances or contrition demonstrated. The Tribunal also had to consider whether a financial incentive, such as a security, would be necessary to ensure compliance, and if so, the appropriate amount for such security.

In its reasoning, the Tribunal referenced established legal principles from cases such as *Applicant VAAN of 2001 v MIMA* and *Liu v MIAC*. It noted that if an applicant's compliance is contingent on a financial incentive, the decision-maker must consider the security provisions under section 269 of the Migration Act. The Tribunal identified that condition 8101 (no work) must be imposed due to the applicant's protection visa application. It also determined that conditions 8401 (reporting), 8506 (address notification), and 8564 (no criminal conduct) should be imposed.

Consequently, the Tribunal remitted the matter for reconsideration. The primary decision-maker was directed to inform the applicant that conditions 8101, 8401, 8506, and 8564 would be imposed and to require a security of $20,000 to ensure compliance with these conditions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE In this case the delegate and the Tribunal both find that the applicant satisfies the time of application criteria set out in cl.050.212 because he has applied for a substantive visa that has not been finally determined (cl.050.212(3). The issue in this case is whether the applicant would abide by conditions imposed on a bridging visa if granted to him.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]. In this case, cl.050.613A applies because the applicant has applied for a Protection visa and is not in a class of persons specified by the minister by instrument in writing for this paragraph. This clause prescribes that condition 8101 (no work) must be imposed. In addition to this mandatory condition, this clause prescribes certain other conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:8101The holder must not engage in work in Australia. (Mandatory)8401The holder must report:(a)at a time or times; and(b) at a place;specified by the Minister for the purpose.8506 The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.8564 The holder must not engage in criminal conduct.

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.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.050.223 of Schedule 2 to the Regulations; and The Tribunal also directs the primary decision maker·to indicate to the applicant that conditions 8101, 8401, 8506 and 8564 will be imposed if the visa is granted; and·to require a security of $20,000 for compliance with the conditions.Paul WindsorMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.