1820932 (Migration) - [2018] AATA 2786

1820932 (Migration) [2018] AATA 2786 (24 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1820932
MEMBER:Nathan Goetz
DATE:24 July 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 24 July 2018 at 5:40pm
CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Whether the applicant will abide by the conditions of the visa – Applicant convicted of murder in home country – Failure to disclose criminal history – Applicant subject of an outstanding Interpol notice – Witness credibility – Dishonest and misleading evidence – Applicant like to not abide by conditions of visa – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73, 269, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 050.223, 050.613A, Schedule 8, Conditions 8101, 8401, 8506, 8564
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) and a decision made by an authorised officer relating to requiring a security under s.269 of the Act.
The applicant provided the Tribunal a copy of the primary decision record.
The applicant is a citizen of Mongolia. According to the delegate decision, the applicant first arrived in Australia as the holder of a visitor visa [in] July 2016. The visa was valid for use until 20 May 2017 with a period of three months stay on each entry. The applicant departed Australia holding the same visa [in] August 2016.
The applicant last arrived in Australia [in] February 2017 holding the same visitor visa. On 14 May 2017 (6 days before his visitor visa was to expire), the applicant applied for a new visitor visa to extend his stay in Australia. He was granted a bridging visa to allow him to remain in Australia while his application for the visitor visa was being considered.
The department subsequently became aware that the applicant had a criminal history in Mongolia which indicated that the applicant had served a prison sentence in Mongolia [for a period of 9 years].
On 29 November 2017, the applicant was issued with a notice by the department to consider refusing his application for a visitor visa on the basis that he would not meet the character test to be granted a new visitor visa.
Further, on 16 January 2018, the applicant was issued with a notice by the department to consider cancelling the bridging visa which was associated with his new visitor visa application on the basis that…

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 1820932 (Migration)

Details

AGLC: 1820932 (Migration) [2018] AATA 2786
Case: [2018] AATA 2786
Decision Date: 24 July 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Bridging E (Class WE) visa made by an applicant who had failed to disclose a significant criminal history, including a conviction for murder and a period of imprisonment in Mongolia. The applicant also failed to disclose an outstanding Interpol notice. The delegate had previously refused to grant the visa, and the applicant sought review of that decision.

The primary legal issue before the Tribunal was whether the applicant was likely to abide by the conditions of the visa, specifically the condition that the holder must not engage in criminal conduct. This required the Tribunal to assess the applicant's credibility and the veracity of the information provided, particularly in light of the undisclosed criminal history and the Interpol notice.

The Tribunal found that the applicant's failure to disclose his conviction for murder and subsequent imprisonment, as well as the outstanding Interpol notice, on multiple visa applications and passenger cards, demonstrated a lack of honesty and a propensity to provide misleading information. While the applicant provided evidence of good character through his employment, shareholding, and philanthropic activities in Mongolia, the Tribunal gave greater weight to the undisclosed criminal history and the Interpol notice. The Tribunal concluded that the applicant was likely to not abide by the conditions of the visa, particularly the condition prohibiting criminal conduct.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant a Bridging E (Class WE) visa. The Tribunal also noted that the applicant did not meet the 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

The Tribunal considers that the following conditions should be imposed in the circumstances of this case:8101 The holder must not engage in work in Australia8401The holder must report: (a) at a time or times; and (b) at a place specified by the Minister8506The holder must notify Immigration at least 2 working days in advance of any change in the holder's address8564 The holder must not engage in criminal conductEVIDENCE TO TRIBUNALImmigration History The applicant confirmed his Australian immigration history as outlined in the delegate decision which is repeated in paragraphs 3 to 11 in this decision.Information provided by the applicant to demonstrate that he is ‘of good character’ At the start of the hearing, the applicant advised the Tribunal that he had some documentation that he wished the Tribunal to consider when determining his application. As the applicant appeared at the Tribunal by audio-visual link, that documentation was not received until after the hearing. The applicant did give oral evidence about the content of the documentation (which was in Mongolian with an English translation). Upon receiving the documentation, the Tribunal is satisfied that the content of the documentation is consistent with the oral evidence that the applicant gave regarding the documentation. The Tribunal accepts that the applicant has previously worked as [a senior manager] of [Company 1] in Mongolia from [October] 2013 until [April] 2017. It accepts his oral evidence that he owns shares in that company and accepts that he is well regarded by that organisation. The Tribunal accepts that the applicant voluntarily participated in [a particular] non-government organisation in Mongolia which is an organisation [that undertakes particular philanthropic activities]. It accepts that the applicant [undertook various philanthropic activities for] the organisation. The Tribunal accepts that [a particular] resident of Mongolia, who provided a letter of support, believes that the applicant is an honest and supportive friend and that he is responsible and trustworthy. The Tribunal accepts that the applicant has [undertaken a particular charitable activity] as outlined in their letter. The Tribunal accepts that the applicant has donated [an amount] towards [a particular event] of [a particular community organisation] and has also [undertaken other charitable activities] as outlined in their letter.Criminal History The applicant told the Tribunal that he had pleaded guilty to a charge of murder and that he was imprisoned in Mongolia [for a period of 9 years]. He explained the circumstances of the offending as [details of offending removed]. The applicant conceded to the Tribunal that this offending had not been included in his original visitor visa application, nor on the two passenger cards he completed for his two trips to Australia, and not included in his subsequent visitor visa application which he completed in Australia. He told the Tribunal that this was not declared on his first visitor visa application because the application had been completed by his assistant when he was [a senior manager] of [Company 1]. He told the Tribunal that he did not share his criminal history with that company so that is why that information was not included in the application.

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.Nathan GoetzMember

Ratio Decidendi

Legal Principle Established

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