1825579 (Migration) - [2018] AATA 4838

1825579 (Migration) [2018] AATA 4838 (11 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1825579
MEMBER:Alison Mercer
DATE:11 September 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 11 September 2018 at 4:42pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General) – ability to abide by visa conditions – current application for judicial review – risk to the community – anti-social and criminal behaviour – criminal charges dropped – chance the applicant may relapses into heavy alcohol use – ability to support himself in the community – reliance on friends and family – no outstanding debts – no security bond – generally credible witness – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73, 46A, 91K, 116, 189, 195A, 137K, 269, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.221, 050.223, 050.612A, Schedule 8, conditions 8101, 8303, 8401, 8506, 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).
The applicant applied for the visa on 28 August 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 August 2018 on the basis that the delegate was not satisfied that, given the applicant’s immigration history, the applicant would abide by the conditions that the delegate was minded to impose on any bridging visa granted to him. Specifically, the delegate:
·accepted that the applicant met the threshold requirements for a subclass 050 bridging visa E in cl.050.212 and cl.050.221 as the applicant had made an application for judicial review of an earlier decision made by the Immigration Assessment Authority (IAA) to refuse to grant him a class XE subclass 790 Safe Haven Enterprise visa (SHEV), and that review application was ongoing at the time of the delegate’s decision;
·stated that he would impose conditions 8101, 8207, 8401, 8506 and 8564 on any bridging visa E granted to the applicant but was not satisfied that the applicant would abide by these conditions because of his ‘historical and recent behavioural issues and inappropriate conduct whilst in the community…

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 1825579 (Migration)

Details

AGLC: 1825579 (Migration) [2018] AATA 4838
Case: [2018] AATA 4838
Decision Date: 11 September 2018

CaseChat Overview and Summary

The applicant sought judicial review of a decision concerning their application for a Bridging E (Class WE) visa, subclass 050. The core of the dispute revolved around whether the applicant met the criteria for the visa, particularly concerning their ability to abide by its conditions, in light of past anti-social and criminal behaviour, despite current criminal charges being dropped. The decision was made by a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant met the criteria under subclause 050.212(3A) by having an ongoing judicial review of a previous substantive visa refusal, and whether the applicant continued to satisfy the requirements of subclauses 050.211 and 050.212 at the time of the decision, as mandated by subclause 050.221. Crucially, the Tribunal also had to determine whether it was satisfied that the applicant would abide by any conditions imposed on the Bridging E visa, pursuant to subclause 050.223.

The Tribunal found that the applicant met subclause 050.212(3A) as they had applied for judicial review of a previous decision to refuse a substantive visa, and those proceedings were ongoing. Consequently, the Tribunal was satisfied that the applicant continued to meet the criteria under subclauses 050.211 and 050.212 at the time of the decision, thus satisfying subclause 050.221. However, when considering subclause 050.223, the Tribunal noted that relevant considerations for assessing an applicant's likely conduct included their past immigration history and any breaches of immigration laws. While the applicant was generally a credible witness and had no outstanding debts, the Tribunal also considered the risk of relapse into heavy alcohol use and the applicant's reliance on friends and family for support. The Tribunal also noted that the applicant did not meet the requirements for a subclass 051 Bridging (Protection Visa Applicant) visa.

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 EVIDENCEThe grounds for seeking the visa - cl.050.212 At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221. In this case, the applicant is seeking to meet cl.050.212(3A). The applicant does not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the Tribunal finds that the applicant meets cl.050.212.Judicial review, merits review, s.137K revocation Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed. The Department’s records indicate that the applicant sought judicial review of a decision made by the IAA on 21 May 2018 to affirm a decision made by a delegate of the Minister on 23 February 2018 to refuse to grant the applicant a Class XE subclass 790 SHEV visa. The Tribunal is satisfied that this is a substantive visa of a type that can be granted while the Australia. It is further satisfied that the judicial review proceedings have not been completed as at the date of the Tribunal’s decision.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. As noted above, the Tribunal is satisfied that the judicial review proceedings lodged by the applicant remain on foot as at the time of the Tribunal’s decision. Accordingly, 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. The applicable provision in the circumstances of this case is cl.050.612A. 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.Alison MercerMember

Ratio Decidendi

Legal Principle Established

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