1933068 (Migration)

[2019] AATA 6446

1933068 (Migration) [2019] AATA 6446 (28 November 2019)

DIVISION:Migration & Refugee Division

CASE NUMBER:  1933068

MEMBER:Nicholas McGowan

DATE:28 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 at 12:59pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – work condition – history of failing to abide by conditions – decision under review affirmed  

LEGISLATION

Migration Act 1958 (Cth), ss 73, 375A
Migration Regulations 1994 (Cth), Schedule 2 cls 050.212, 050.223, 050.612A

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 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 17 November 2015. At that time Class WE contained two subclasses: Subclasses 050 and 051. The decision to refuse to grant the visa was made on 18 September 2019 on the basis that the applicant will not abide by conditions contained in cl.050.223.

2. The applicant appeared before the Tribunal in a public hearing on November 28, 2019 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The issue in this case is whether the applicant will abide by conditions: cl.050.223.

   Whether the applicant satisfies any of the time of decision criteria

4. In this case, the applicant is seeking to meet cl.050.212(3A) and (4)(a). The applicant does not claim (nor is there any evidence) he meets any of the other alternative criteria in cl.050.212. As the evidence before the Tribunal is that the applicant has applied for judicial review of a decision relating to a substantive visa and the judicial proceedings have not been completed, the applicant meets the relevant criteria cl.050.212(3A) at the time of application.

   Whether the applicant continues to satisfy the time of application criteria

5. 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 the evidence before the Tribunal is that the judicial review has not been finally determined at time of decision, the applicant continues to meet cl.050.212(3A) and (4)(a). The Tribunal finds that at the time of decision, the applicant continues to satisfy cl.050.211 and cl.050.212.

   Whether the applicant will abide by conditions if a bridging visa is granted

6. Clause 050.612A prescribes that certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

   ·8101 – no work;

   ·8207 – no study

   ·8401 – must report as directed, and;

   ·8506 – notify of change of address.

7. The Tribunal invited the applicant to expand upon his circumstances and invited him to provide oral evidence which he thought was relevant to his review.

8. The Tribunal explained to the applicant that the issue in his case was whether he would abide by any conditions imposed upon him should he be granted a bridging visa.

9. The Tribunal discussed with the applicant his immigration history as contained in the Department’s decision record, which the applicant provided to the Tribunal. The applicant’s history includes unlawfulness, and working without the right to do so. The Tribunal also discussed a s.375A certificate, and offered the opportunity for the applicant to make any submission, either on the contents themselves, or the certificate’s validity. None was proffered.

10. The Tribunal discussed with the applicant the condition of ‘no work’: 8101. The applicant concedes he has breached the no work conditions previously. The applicant also concedes his original student visa was cancelled because he failed to comply with the conditions attached to it. The applicant told this tribunal he also employed other people, but there is no evidence of any compliance with any relevant legal requirements to undertake such activity, which is in addition to his working without the right to do so. The applicant also told this tribunal he drove while in Australia (occasionally – he claims) and did so without a licence.

11. The Tribunal made plain that it would need to reflect upon the extent to which it has been satisfied that he will now abide by his no work condition, given his consistent past migration history of failing to abide by any conditions. Moreover, the applicant’s admission he also drove a vehicle without a licence indicates to this Tribunal a preparedness to conduct himself in a manner consistent with his own desire and with no visible regard to the laws of this country. In such circumstances, and despite the applicant’s claims he will abide by this condition, combined with his past behaviour, together with his wilful regard for broader Australia law – including road law, the, the applicant has not satisfied the Tribunal that he would abide this condition, regardless of the promise by his sister to support him financially 9and even were this Tribunal to accept she would do so). It therefore follows that the Tribunal has not been satisfied that if granted the visa, the applicant will abide by the ‘no work’ condition: 8101.

    FINDINGS

12. As the applicant has not satisfied the Tribunal that he will not abide by the condition of ‘no work, the Tribunal need not consider the additional conditions.

13. The applicant has not satisfied the Tribunal that he will abide by a condition that would be imposed on his bridging visa if granted. Therefore, the applicant does not meet cl.050.223.

14. For the reasons above, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

15. 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

16. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

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