1921458 (Migration) - [2019] AATA 5255

1921458 (Migration) [2019] AATA 5255 (12 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1921458
MEMBER:David McCulloch
DATE:12 August 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 12 August 2019 at 3:09pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – abide by conditions – criminal conduct – extensive period as unlawful non-citizen – visa used to facilitate continued stay – no evidence of financial security – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 189, 269
Migration Regulations 1994 (Cth), Schedule 2 cls 050.211, 050.212, 050.221, 050.223
CASES

Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289 (VAAN)

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.
The applicant applied for the visa on 30 July 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 1994 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.223.
The decision to refuse to grant the visa and the decision relating to requiring a security were made on 1 August 2019 on the basis that the delegate was not satisfied that the applicant would abide by various conditions that were considered should be imposed on the visa and that no amount of security that might be provided would ensure compliance.
The applicant appeared before the Tribunal on 8 August 2019 to give evidence and present arguments. The applicant communicated with the Tribunal in English.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant would comply with conditions on the visa imposed pursuant to cl.050.223.
Applicant’s immigration and other relevant history
The decision of the delegate, a copy of which has been provided by the applicant to the Tribunal, outlines the applicant’s immigration and criminal history as follows:
[The Applicant] has a long immigration history. In short, he first arrived in Australia [in] June 1999 as the holder clan Electronic Travel Authority (ETA) (UD 976). Since then, he has been in and out of Australia several times holding different subclasses.
I note that [the Applicant] has made several…

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 1921458 (Migration)

Details

AGLC: 1921458 (Migration) [2019] AATA 5255
Case: [2019] AATA 5255
Decision Date: 12 August 2019

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa, Subclass 050 (Bridging (General)), before the Administrative Appeals Tribunal. The applicant sought review of a decision not to grant this visa.

The primary legal issue before the Tribunal was whether the applicant would comply with the conditions imposed on the visa pursuant to clause 050.223 of the Migration Regulations. This required an assessment of the applicant's immigration history and criminal conduct.

The Tribunal considered the applicant's extensive immigration history, noting that he had been in Australia since June 1999, with his student visa being cancelled in August 2006. Despite the Administrative Appeals Tribunal affirming this cancellation in February 2007, the applicant remained in Australia as an unlawful non-citizen. Further, the applicant had been charged with criminal offences, including one in April 2019 for which he was detained under section 189 of the Migration Act. The Tribunal found no evidence that the applicant had attempted to engage with the Department to regularise his immigration status. Given this history of non-compliance and criminal conduct, the Tribunal concluded that there was no evidence to suggest the applicant would comply with the conditions of the visa.

The Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa. The Tribunal also noted that the applicant was not a relevant eligible non-citizen for a Bridging (Protection Visa Applicant) visa, Subclass 051.

Orders

Orders of the court

Full text does not contain this section.

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 The issue in this case is whether the applicant would comply with conditions on the visa imposed pursuant to cl.050.223.Applicant’s immigration and other relevant history The decision of the delegate, a copy of which has been provided by the applicant to the Tribunal, outlines the applicant’s immigration and criminal history as follows:[The Applicant] has a long immigration history. In short, he first arrived in Australia [in] June 1999 as the holder clan Electronic Travel Authority (ETA) (UD 976). Since then, he has been in and out of Australia several times holding different subclasses.I note that [the Applicant] has made several trips in and out of Australia and he last arrived in Australia, holding a student visa (TU572) [in] June 2005.On 08 August 2006 [the Applicant’s] student visa subclass TU 572 visa was cancelled under s116 and on same day a Bridging Visa E (BVE) was granted to [The Applicant]. The BVE was valid until 17 August 2006,I note that on 17 August 2006 [the Applicant] sought merits review of the cancellation decision at the Administrative Appeals Tribunal (AAT). The AAT affirmed the primary cancellation decision on 12 February 2007. [The Applicant] did not depart Australia nor did he engage with the Department to regularise his immigration status and lie became an unlawful non-citizen in the community.On 23 November 2017 [State 1] Police stopped [the Applicant] for random traffic check. [The Applicant] stated he didn't hold any visas. [The Applicant] stated he would report to the Department with his case worker soon. However, departmental systems do not indicate [the Applicant] ever attempted to engage with the department to regularise his Immigration status.On 04 April 2019 [the Applicant] was located by [State 1] Police again. [The Applicant] was charged with "[Criminal Charge 1]". [State 1] Police contacted the Immigration Status Service (155) who identified [The Applicant] as an UNC and he was subsequently detained under s189 of the Migration Act. He was later transferred to [Detention Centre 1], where he is currently being accommodated.On 28 July 2019 [the Applicant] commenced an application for a Protection Visa (PV) on Form 366C. The Detention Review Officer was informed of associated Bridging Visa E (BVE) application on 30 July 2019 as required under item 1305(3)(c) of Schedule 1 of the Migration Regulations and is the subject of this assessment. I note that in his PV application, [the Applicant] wrote his surname as [Alternate spelling of Applicant surname] who later confirmed with the delegate during that interview that it was typo error and his correct surname is [Applicant surname]. In the hearing the Tribunal went through with the applicant his above immigration and criminal charge history in Australia. In all respects the applicant indicated that information was accurate.

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.David McCullochMember

Ratio Decidendi

Legal Principle Established

The issue in this case is whether the applicant would comply with conditions on the visa imposed pursuant to cl.050.223.Applicant’s immigration and other relevant history The decision of the delegate, a copy of which has been provided by the applicant to the Tribunal, outlines the applicant’s immigration and criminal history as follows:[The Applicant] has a long immigration history. In short, he first arrived in Australia [in] June 1999 as the holder clan Electronic Travel Authority (ETA) (UD 976). Since then, he has been in and out of Australia several times holding different subclasses.I note that [the Applicant] has made several trips in and out of Australia and he last arrived in Australia, holding a student visa (TU572) [in] June 2005.On 08 August 2006 [the Applicant’s] student visa subclass TU 572 visa was cancelled under s116 and on same day a Bridging Visa E (BVE) was granted to [The Applicant]. The BVE was valid until 17 August 2006,I note that on 17 August 2006 [the Applicant] sought merits review of the cancellation decision at the Administrative Appeals Tribunal (AAT). The AAT affirmed the primary cancellation decision on 12 February 2007. [The Applicant] did not depart Australia nor did he engage with the Department to regularise his immigration status and lie became an unlawful non-citizen in the community.On 23 November 2017 [State 1] Police stopped [the Applicant] for random traffic check. [The Applicant] stated he didn't hold any visas. [The Applicant] stated he would report to the Department with his case worker soon. However, departmental systems do not indicate [the Applicant] ever attempted to engage with the department to regularise his Immigration status.On 04 April 2019 [the Applicant] was located by [State 1] Police again. [The Applicant] was charged with "[Criminal Charge 1]". [State 1] Police contacted the Immigration Status Service (155) who identified [The Applicant] as an UNC and he was subsequently detained under s189 of the Migration Act. He was later transferred to [Detention Centre 1], where he is currently being accommodated.On 28 July 2019 [the Applicant] commenced an application for a Protection Visa (PV) on Form 366C. The Detention Review Officer was informed of associated Bridging Visa E (BVE) application on 30 July 2019 as required under item 1305(3)(c) of Schedule 1 of the Migration Regulations and is the subject of this assessment. I note that in his PV application, [the Applicant] wrote his surname as [Alternate spelling of Applicant surname] who later confirmed with the delegate during that interview that it was typo error and his correct surname is [Applicant surname]. In the hearing the Tribunal went through with the applicant his above immigration and criminal charge history in Australia. In all respects the applicant indicated that information was accurate. Later in the delegate’s decision it is indicated that, in relation to the ‘ [Criminal Offence 1]’ , [the] applicant was sentenced to a Conditional Release Order for a period of six months commencing [date]. The decision also indicated that the applicant was found guilty of ‘[Criminal Offence 2]’ and was fined [amount]. In the hearing the applicant agreed that these charges and the [Criminal Offence 2] were correct.