1931449 (Migration) - [2019] AATA 6119

1931449 (Migration) [2019] AATA 6119 (15 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1931449
MEMBER:Peter Vlahos
DATE:15 November 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 15 November 2019 at 6.53am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – past immigration history – unlawful non-citizen – possibility of a bond – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223; Schedule 8, Conditions 8101, 8207, 8401, 8505
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 29 October 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 1 November 2019 on the basis that the applicant did not meet the requirements of cl. 050.223.
The applicant appeared before the Tribunal on 14 November 2019 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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] is granted a Bridging E (Class WE) visa.
Visa History and background of the applicant
[The applicant] is a national of Malaysia and originates from Sarawak. He is [age] years of age. He has family in Malaysia currently living which consists of his parents, and older sister. He has one brother (age was not identified) currently living in Australia. The applicant completed his schooling in Malaysia and was before he left Malaysia, working in his father’s business as [Occupation 1]. On 5 September 2015, the applicant was granted a [Tourist visa] and he arrived in Australia (Perth) [in] September 2015. [In] December 2015, his Tourist visa expired and the applicant became a unlawful non-citizen.
[In] October 2019 the applicant was apprehended by the Australian Federal Police and detained pursuant to s.189 (1)…

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 1931449 (Migration)

Details

AGLC: 1931449 (Migration) [2019] AATA 6119
Case: [2019] AATA 6119
Decision Date: 15 November 2019

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa by a Malaysian national. The applicant arrived in Australia in September 2015 on a Tourist visa, which expired in December 2015, rendering him an unlawful non-citizen. He was apprehended by the Australian Federal Police in October 2019 and subsequently applied for a Protection visa, which remained undetermined. The decision under review was made by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant would abide by any conditions imposed on a Bridging E visa, as required by clause 050.223 of the Migration Regulations 1994. This clause necessitates the Tribunal being satisfied that the applicant will comply with visa conditions. In assessing this, the Tribunal was required to consider the applicant's likely conduct, including their past immigration history, the significance and wilfulness of any breaches, the presence of mitigating circumstances, and any evidence of contrition. The Tribunal also had to consider whether a financial security, pursuant to section 269 of the Migration Act 1958, would be necessary to ensure compliance.

The Tribunal reasoned that in determining an applicant's likelihood to abide by visa conditions, their past immigration history is a relevant consideration. This includes examining previous breaches of immigration laws, the seriousness of those breaches, the intent behind them, and any mitigating factors or remorse shown. If the Tribunal is satisfied that compliance is only likely with a financial incentive, then a security decision under section 269 must be considered. Conversely, if an applicant is unlikely to comply even with a financial incentive, the occasion for imposing a security does not arise. The amount of any security should be proportionate to the conditions and the applicant's financial circumstances, aiming to secure compliance.

The Tribunal affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

The issue in this case is whether [the applicant] is granted a Bridging E (Class WE) visa.Visa History and background of the applicant [The applicant] is a national of Malaysia and originates from Sarawak. He is [age] years of age. He has family in Malaysia currently living which consists of his parents, and older sister. He has one brother (age was not identified) currently living in Australia. The applicant completed his schooling in Malaysia and was before he left Malaysia, working in his father’s business as [Occupation 1]. On 5 September 2015, the applicant was granted a [Tourist visa] and he arrived in Australia (Perth) [in] September 2015. [In] December 2015, his Tourist visa expired and the applicant became a unlawful non-citizen. [In] October 2019 the applicant was apprehended by the Australian Federal Police and detained pursuant to s.189 (1) of the Act (as Amended). On 29 October 2019, the applicant made an application for a Protection visa which has not yet been determined. 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. 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 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].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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] is granted a Bridging E (Class WE) visa.Visa History and background of the applicant [The applicant] is a national of Malaysia and originates from Sarawak. He is [age] years of age. He has family in Malaysia currently living which consists of his parents, and older sister. He has one brother (age was not identified) currently living in Australia. The applicant completed his schooling in Malaysia and was before he left Malaysia, working in his father’s business as [Occupation 1]. On 5 September 2015, the applicant was granted a [Tourist visa] and he arrived in Australia (Perth) [in] September 2015. [In] December 2015, his Tourist visa expired and the applicant became a unlawful non-citizen. [In] October 2019 the applicant was apprehended by the Australian Federal Police and detained pursuant to s.189 (1) of the Act (as Amended). On 29 October 2019, the applicant made an application for a Protection visa which has not yet been determined. 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. 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 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].

Ratio Decidendi

Legal Principle Established

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