1826744 (Migration) - [2018] AATA 4328

1826744 (Migration) [2018] AATA 4328 (21 September 2018)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1826744
MEMBER:Jason Pennell
DATE OF DECISION:  21 September 2018
DATE CORRIGENDUM
SIGNED:23 October 2018
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

The date ‘3 June 2015’ at paragraph 8 should be replaced with ‘3 June 2018’.
Jason Pennell
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1826744
MEMBER:Jason Pennell
DATE:21 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 21 September 2018 at 12.15pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) – Subclass 050 (Bridging (General) – no work condition – applicant working unlawfully until being involuntarily located – community and family support – no evidence of level of support – criminal charges in Australia – unable to provide security – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 73, 189, 269
Migration Regulations 1994 (Cth), r 2.20 Schedule 2 cls 050.211, 050.212, 050.221, 050.222, 050.223, 050.613A
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

1.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.
2.The applicant applied for the visa on 5 September 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.050.212 and cl 050.223.
3.The decision to refuse to grant the visa was made on 5 June 2015 on the basis that the applicant did not meet cl.050.223 as the delegate was not satisfied the applicant would abide by conditions imposed on any bridging visa granted to him. The applicant appeared before the Tribunal on 20 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
4.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF Claims and evidence
5.The issue in this case is whether the applicant will abide by the conditions imposed on the bridging visa as required by cl.050.223.
Immigration status of the applicant - cl.050.211
6.Clause 050.211 is met if,…

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 1826744 (Migration)

Details

AGLC: 1826744 (Migration) [2018] AATA 4328
Case: [2018] AATA 4328
Decision Date: 21 September 2018

CaseChat Overview and Summary

The applicant, who was seeking review of a decision concerning a Bridging E (Class WE) visa (Subclass 050), was the appellant before the Federal Circuit and Family Court of Australia. The dispute centred on the applicant's eligibility for the visa, particularly in light of their unlawful employment prior to being involuntarily located, and the court's assessment of their community and family support, as well as their ability to provide security due to ongoing criminal charges in Australia.

The primary legal issue before the court was whether the delegate's decision to refuse the visa was affected by an error of law. This required the court to consider whether the delegate had properly assessed the evidence presented by the applicant regarding their community and family support, and whether the delegate had given adequate weight to the applicant's circumstances, including the criminal charges, when determining if the applicant could provide security.

The court affirmed the delegate's decision, finding that there was no evidence of the level of community and family support claimed by the applicant. Furthermore, the court noted that the applicant's criminal charges in Australia meant they were unable to provide the necessary security. Consequently, the court concluded that the delegate had not erred in law in refusing the visa application.

Orders