1913161 (Migration) - [2019] AATA 2997

1913161 (Migration) [2019] AATA 2997 (4 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1913161
MEMBER:Linda Symons
DATE:4 June 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Statement made on 04 June 2019 at 12:33pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – no work requirement – brother’s financial support – debts to pay in Australia and a child to support – reporting and notification requirements – incentives to remain in Australia outweigh incentives to depart if Protection visa not granted – sufficiency of security bond – traumatised by experience in immigration detention – no provision for compassionate and compelling reasons – length of immigration detention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.223; 050.613A; Schedule 8, Conditions 8101, 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 under s.73 of the Migration Act 1958 (the Act).
The applicant applied to the Department of Home Affairs (the Department) for the Bridging E (Class WE) visa on 10 May 2019. 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 23 May 2019 on the basis that the delegate was not satisfied that the applicant would abide by the visa conditions if granted a visa. On 27 May 2019, he applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 31 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from his brother, [Mr A].
The applicant was represented in relation to the review by his registered migration agent, [Mr B], who attended the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The issue in this case is whether the applicant satisfies the requirements of cl.050.223.
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…

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.

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Details

AGLC: 1913161 (Migration) [2019] AATA 2997
Case: [2019] AATA 2997
Decision Date: 4 June 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Bridging E (Class WE) visa, Subclass 050 (Bridging (General)). The applicant sought to challenge the decision not to grant this visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 050.223 of the Migration Regulations 1994, which mandates that the Tribunal be satisfied the applicant will abide by any conditions imposed on the visa. This involved considering the applicant's likely conduct, past immigration history, and the potential for a security bond to ensure compliance. The Tribunal also considered whether the applicant met the requirements for a Subclass 051 (Bridging (Protection Visa Applicant)) visa, which they did not.

The Tribunal reasoned that to satisfy clause 050.223, it must be convinced of the applicant's future compliance with visa conditions, drawing on principles from cases such as *Applicant VAAN of 2001 v MIMA* and *Liu v MIAC*. The Tribunal identified specific conditions that would likely be imposed, including reporting as directed, notifying changes of address, and not engaging in studies. The Tribunal considered the applicant's financial support from a brother, debts, and responsibility for a child, as well as the applicant's experience in immigration detention. Ultimately, the Tribunal was not satisfied that the applicant would abide by the imposed conditions, even with the possibility of a security bond.

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 EVIDENCE AND FINDINGS The issue in this case is whether the applicant satisfies the requirements of cl.050.223.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, he 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. 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]. If the Tribunal is satisfied that the applicant will abide by the conditions if security of a particular amount is required, the applicant meets cl.050.223. However, if not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl.050.223 is not met. If the Tribunal is satisfied that the applicant will only abide by the conditions if given a financial incentive to do so, it is necessary to consider the security decision made pursuant to s.269 of the Act: VAAN at [10]. Conversely, if not satisfied that an applicant would abide by the conditions attached to a Bridging visa even where there is a financial incentive to do so, the occasion for the imposition of a security does not arise: VAAN per Finklestein J at [21]-[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37]. In considering the security decision, the amount of security should be a sum that is designed to secure compliance with the relevant conditions, having regard to the conditions that must be complied with, and the particular circumstances of the person bound by the requirements, notably their financial position: VAAN at [27]. In this case, cl.050.613A applies because the applicant has applied for a Protection visa and is not in a class of persons specified by the Minister by instrument in writing for this paragraph. This clause prescribes that, in addition to mandatory condition 8101 (No work), certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:·8401 Report as directed.·8506 Notify change of address.·8207 Not engage in any studies or training in Australia.

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.

Ratio Decidendi

Legal Principle Established

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