1821435 (Migration) - [2018] AATA 3507

1821435 (Migration) [2018] AATA 3507 (2 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1821435
MEMBER:Joseph Lindsay
DATE:2 August 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 02 August 2018 at 3:43pm

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Whether the applicant will comply with the conditions of the visa – Whether the applicant will engage in work – History of non-compliance with visa conditions – Whether the applicant will be financially supported in the community – Paucity of evidence provided in relation to financial supports – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212(3A), 050.221, 050.222, 050.223, 050.612A, 050.613A, Schedule 8, Conditions 8101, 8207, 8304, 8401, 8506
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 (the bridging visa E) under s.73 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 19 July 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.050.212(3A).
The decision to refuse to grant the visa was made on 23 July 2018 on the basis that the delegate was not satisfied that the applicant would not work or that he would have sufficient financial support to support himself in the community.
The applicant appeared before the Tribunal on 30 July 2018 to give evidence and present arguments. The applicant was represented by [a particular lawyer]. The Tribunal received oral evidence in person from the applicant’s sister, [Ms A]. The Tribunal received oral evidence by telephone from the applicant’s friend, [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
As indicated above, the issue in this case is that the delegate was not satisfied that the applicant would comply with a number of conditions as part of the bridging visa, particularly mandatory condition 8101 (the holder must not engage in work in Australia). The Tribunal notes that there were other conditions that the delegate was not…

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 1821435 (Migration)

Details

AGLC: 1821435 (Migration) [2018] AATA 3507
Case: [2018] AATA 3507
Decision Date: 2 August 2018

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a Bridging E (Class WE) visa, Subclass 050 (Bridging (General)). The primary dispute before the Administrative Appeals Tribunal was whether the applicant would comply with the conditions of the visa, specifically the condition prohibiting engagement in work, and whether he would receive adequate financial support in the community.

The legal issues before the Tribunal were whether the applicant would comply with mandatory condition 8101 (not to engage in work) if granted a Bridging E visa, and whether he would be financially supported in the community. The Tribunal was required to consider the applicant's history of non-compliance with visa conditions and the evidence presented regarding financial support.

The Tribunal found that the applicant understood that condition 8101 prohibited work, yet he had worked in April 2018 while knowing he did not hold a valid visa to remain or work in Australia. The Tribunal concluded that the applicant's decision to report an assault did not indicate ignorance of his unlawful status. Furthermore, the Tribunal placed no weight on purported financial support statements, as they were translated using "Google Translate" and the individuals providing them could not be verified. The Tribunal also noted that specific clauses in Schedule 2 of the Regulations mandated the imposition of condition 8101 if the applicant were granted a Bridging E visa, particularly given his application for a protection visa.

The Tribunal affirmed the delegate's decision, finding that it was not satisfied the applicant would comply with the conditions of the visa, particularly the prohibition on work, and that there was insufficient evidence of reliable financial support.

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

The Tribunal notes the following relevant part of the submissions, in summary, from the agent: a.The applicant contacted all three witnesses whom he intended to call at the hearing and they all advised that they had been available and expecting to give evidence to the Tribunal at 9:30am, however by 12:00pm when the Tribunal called them they had returned to work and were unable to attend the call. All wished to confirm their ongoing commitment to providing the applicant with financial support. b.The applicant wishes to clarify that he has been offered both accommodation (at [Address 1]) and financial support by [Mr B] upon his release from detention – thus that he will not have rental expenses to attend to on his release.c.While she gave evidence that she was unable to ‘support’ the applicant on his release, his sister [Ms A] has access to funds through community support from [Charitable Organisation 1], [Health Services Provider 1] and other organisations, which (given that the applicant will be living in the same home) she is able to apply to their common expenses, such as bills and food.d.[Ms A] contacted [Debt Recovery Agency 1] on behalf of her brother, stating that she had written authority to speak with them on behalf of her brother who was in immigration detention – however was told that given the sensitive nature of their dealings with him, they could not speak with her, absent a power of attorney made in her favour. e.The applicant’s ‘auntie’, [Ms J], made another transfer in the amount of AUD $300 to cover [Ms A]’s accommodation and travel expenses related to her attendance at the applicant’s hearing. Assessment of evidence and findings The Tribunal’s assessment of the evidence and findings is as follows. It is clear from the applicant’s own evidence at hearing that he understood that mandatory condition 8101 meant, if he got a bridging visa E, he would not be allowed to work. It is equally clear from the applicant’s own evidence at hearing that he worked in April 2018, and he knew at that time that he did not hold a visa to remain or work in Australia. The Tribunal does not accept the submission that the applicant’s decision to report an assault to the police indicates he was ignorant of his unlawful status. Accordingly, the Tribunal finds that when the applicant was working in April 2018, he knew at that time that he did not hold a visa to remain or work in Australia. The Tribunal considers it to be unlikely that the applicant will receive financial support in the community if he was to be granted a bridging visa E. In regards to the statements from [Ms D], [Mr I] and [Mr E], during the hearing when questioned about the statements, the agent herself acknowledged that they were not done by a NAATI-accredited translator. In further questioning, the agent actually indicated that she herself, with the best of intentions, had done the translations using “Google translate” and that she got the individuals to sign the statements. In addition to the fact that the Tribunal was unable to contact [Ms D], [Mr I] and [Mr E] to verify their identity or their purported statements, the Tribunal places no weight on the statements purportedly provided by [Ms D], [Mr I] and [Mr E] and does not accept that [Ms D], [Mr I] and [Mr E] will provide any financial support to the applicant in the community if he were to be granted a bridging visa E.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE As indicated above, the issue in this case is that the delegate was not satisfied that the applicant would comply with a number of conditions as part of the bridging visa, particularly mandatory condition 8101 (the holder must not engage in work in Australia). The Tribunal notes that there were other conditions that the delegate was not satisfied that the applicant would abide by, including conditions 8304, 8207, 8401 and 8506. However, for the reasons below, the Tribunal is not satisfied that the applicant would comply with mandatory condition 8101. Whether or not mandatory condition 8101 applies to the applicant During the hearing, the Tribunal discussed with the applicant and his agent the issue that the applicant’s circumstances meant that mandatory condition 8101 would apply to him if he was to get a bridging visa E. The Tribunal noted that the delegate’s decision referred to the fact that he was satisfied that subclause 050.212(3A) in Schedule 2 of the Regulations applied to the applicant because he had lodged judicial review of a decision to refuse to grant a substantive visa of a kind that can be granted whilst he was in Australia (in the applicant’s case, a protection visa). The consequence of this is that, under clause 050.612A in Schedule 2 of the Regulations, condition 8101 must be imposed. The Tribunal also noted that clause 050.613A in Schedule 2 of the Regulations also applied, that states: (1) In the case of a visa granted to an applicant (whether or not the applicant is an applicant to which any other clause in this Division applies, other than clause 050.613 or 050.616A) who:(a) applies for a protection visa; and(b)is not in a class of persons specified by the Minister by instrument in writing for this paragraph;condition 8101, unless condition 8116 is imposed.(2)If the applicant is an applicant to whom subclause (1) applies, any 1 or more of conditions 8116, 8201, 8207, 8401, 8505, 8506, 8507, 8508, 8510, 8511, 8512 and 8548 may be imposed.(3)Condition 8116 must not be imposed unless the applicant is in a class of persons specified by the Minister, by legislative instrument, for this subclause. The Tribunal finds that clause 050.613A in Schedule 2 of the Regulations has application to the applicant. The consequence of this is that mandatory condition 8101 also must be imposed if the applicant were to be granted a bridging visa E. Accordingly, in the Tribunal’s view, regardless of any other issue, if the applicant was to be granted a bridging visa E, he needed to be able to satisfy the Tribunal that he actually would comply with condition 8101. Issues raised at hearing on Monday 30 July 2018 As indicated above, on Monday 30 July 2018, a number of relevant issues were raised during the hearing. Applicant’s understanding as to why condition 8101 would be imposed A concern raised during the hearing was the applicant’s apparent lack of understanding as to why he would not be permitted to work if he got a bridging visa E.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.