1825188 (Migration) - [2018] AATA 4436

1825188 (Migration) [2018] AATA 4436 (6 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1825188
MEMBER:Nathan Goetz
DATE:6 September 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 06 September 2018 at 10:50am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – conditions imposed on visa – failure to notify residential address – failure to attend department to regularise migration status – failure to declare criminal history – seriousness of offence – engaged in employment – no work rights – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73, 269, 424AA
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.223, 050.613A, Schedule 8, Conditions 8101, 8401, 8505, 8564
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.
On 28 August 2018, the delegate refused to grant the bridging visa to the applicant because the delegate was not satisfied that the applicant would abide by conditions which would be imposed as a condition of the bridging visa.
On 29 August 2018, the applicant filed an application for review of this decision with the Tribunal. The applicant appeared before the Tribunal by audio-visual link from immigration detention on 4 September 2018 to give evidence and present arguments in support of being granted the visa. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
RELEVANT LAW
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.050.212(3) which requires that the applicant has applied for a substantive visa that has not been finally determined, or that he will apply for a substantive visa.
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…

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 1825188 (Migration)

Details

AGLC: 1825188 (Migration) [2018] AATA 4436
Case: [2018] AATA 4436
Decision Date: 6 September 2018

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant the applicant a Bridging E (Class WE) visa, specifically a Subclass 050 (Bridging (General)) visa, and also a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant had lodged an initial protection visa application which was found to be invalid. The applicant had also failed to notify the department of his residential address, failed to attend the department to regularise his migration status, and had engaged in employment without work rights. The decision under review was affirmed by the Tribunal.

The legal issues before the Tribunal were whether the applicant met the criteria for the grant of a Bridging E visa, considering his failure to comply with visa conditions and his status as an unlawful non-citizen. Specifically, the Tribunal had to determine if the applicant was a relevant eligible non-citizen as defined by the regulations for a Subclass 051 visa, and whether his actions warranted the grant of a Bridging E visa despite the circumstances.

The Tribunal found that while the applicant had engaged with the department regarding his invalid protection visa application, he had failed to meet certain conditions. The applicant had not provided a residential address initially due to an impending move, and subsequently relocated and obtained employment without work rights. The Tribunal noted that the department had been slow to address the invalidity of the protection visa application, and that the applicant had largely initiated contact to resolve his status. However, the applicant was found to be an unlawful non-citizen from 2 May 2018. The Tribunal concluded that the applicant did not satisfy the criteria for the grant of a Subclass 050 visa and was not a relevant eligible non-citizen for a Subclass 051 visa.

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

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Decision

Reasons for decision

For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa. 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

The Tribunal provided the history of the applicant’s telephone contact with the department at the hearing and the applicant confirmed that this was correct. The applicant also confirmed that he had been attended upon by departmental officials on 31 May 2018 and on 9 August 2018 and that both times he had been at [Workplace 1].Dealings by the applicant with immigration officials – Reporting Condition and Residential Condition The Tribunal accepts that the applicant lodged his first (but ultimately invalid) protection visa application during the three month period when he validly had an ETA and that he has, in some respects, been engaged with the department to address the issues arising from the invalidity of that application. The applicant told the Tribunal that the reason he did not put a residential address in his protection visa application on 20 April 2018 was due to the fact that he would be moving from that address shortly. At the time of lodging the application, he was living with friends in [City 1], [State 2] but moved to his own place at [an address] in [a suburb], [State 1] in May 2018. He told the Tribunal that although he came to Australia with [amount] Malaysian ringgits and [amount] Australian dollars he was running out of money and relocated to [State 1]. He used his remaining funds to pay a rental bond and weekly rent of $140 for his address in [a suburb], and he shortly thereafter obtained employment at [Workplace 1]. His employment will be discussed later in this decision. There is nothing on the departmental file to suggest that the department was overly concerned about the applicant’s unlawful status in Australia. Quite the contrary. There are no case notes to indicate that the department initiated any contact with the applicant to resolve his invalid protection visa application, and it appears that any contact with the applicant to resolve the situation was initiated by the applicant himself. When the applicant was advised that the lack of a residential address was an issue which made the protection visa application invalid, the applicant promptly emailed the department to provide his full particulars. He then contacted the department on numerous occasions to seek an update about his protection visa application and clearly had a proactive approach to resolving the issues associated with his invalid application. The Tribunal accepts that when a valid protection visa application is lodged, an associated bridging visa is granted which allows an applicant to remain lawfully in Australia and that there was a reasonable expectation that the applicant, who has submitted a protection visa application, would expect that he would be on such a visa. It appears to the Tribunal that the department has sat on its hands regarding the validity of the applicant’s first protection visa application (despite it being identified as an issue immediately, the department did not finally determine the validity until almost six weeks later). The applicant’s ETA expired on 2 May 2018 and he was unlawfully in Australia from that point onwards. He was attended upon by an immigration official on 31 May 2018 and there was no attempt by the department to regularise the applicant’s immigration status on that day in any meaningful way, other than a request by the official for the applicant to contact the department to obtain an update regarding the protection visa application, which he did the following day on 1 June 2018.