2001156 (Migration) - [2020] AATA 633

2001156 (Migration) [2020] AATA 633 (29 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2001156
MEMBER:Nathan Goetz
DATE:29 January 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 29 January 2020 at 5:30pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – criminal charges – dishonest conduct suggested applicant would re-offend if granted visa – unlawful in Australia for almost 10 years – previously failed to notify Department of address change – did not attempt to regularise migration status – disregard for Australia’s migration laws – Tribunal not satisfied applicant will abide by visa conditions – decision under review affirmed

LEGISLATION
Bail Act 2013 (NSW), s 19
Crimes Act 1900 (NSW), ss 129E(1)(b), 192J
Migration Act 1958 (Cth), ss 73, 189(1), 269, 359AA
Migration Regulations 1994, Schedule 2, cls 050.211, 050.223, Schedule 8, Conditions 8401, 8506, 8564

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD
Liu v MIAC [2008] FMCA 725

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 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 17 January 2020. 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 and the decision relating to requiring a security was made on 21 January 2020 on the basis that the delegate was not satisfied that the applicant would abide by the conditions imposed on a bridging visa.
The applicant applied to the Tribunal on 23 January 2020 for a review of the refusal decision. The applicant appeared before the Tribunal on 29 January 2020 to give evidence and present arguments.
The Tribunal also received oral evidence from [Ms A] who was a friend of the applicant.
The Tribunal has considered the relevant contents of the Department file, the Tribunal file and the oral evidence presented to the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a [age] old [man] who is a citizen of Sri Lanka.
He first and last arrived in Australia [in] March…

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: 2001156 (Migration) [2020] AATA 633
Case: [2020] AATA 633
Decision Date: 29 January 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal affirmed the decision of the delegate not to grant the applicant, a citizen of Sri Lanka, a Bridging E (Class WE) visa. The applicant had been in Australia unlawfully for almost 10 years, having overstayed his student visa which expired in September 2009. In July 2019, he was charged with serious criminal offences, including dealing with information to facilitate the commission of an indictable offence and dishonestly obtaining a financial advantage, relating to fraudulent invoicing practices through a business he had registered.

The Tribunal was required to determine whether the applicant would satisfy the criteria for the grant of a Bridging E visa, specifically whether he would comply with the conditions of the visa and whether there was any suggestion that he would re-offend. The applicant also sought a Bridging (Protection Visa Applicant) visa, but the Tribunal found he did not meet the eligibility criteria for that visa.

The Tribunal's reasoning focused on the applicant's extensive period of unlawful status in Australia, his failure to notify the Department of an address change, and his lack of attempts to regularise his migration status or depart the country. Crucially, the criminal charges indicated dishonest conduct and a disregard for Australian laws. The Tribunal concluded that, given the applicant's past behaviour and the nature of the criminal charges, there was no satisfaction that he would abide by the conditions of a Bridging E visa. Consequently, the Tribunal affirmed the delegate's decision not to grant the 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 The applicant is a [age] old [man] who is a citizen of Sri Lanka. He first and last arrived in Australia [in] March 2006 as the holder of a student visa. The visa was valid until 3 April 2007 and was subject to several conditions including 8101 (No work). On 6 April 2006 the applicant was granted a further student visa and visa condition 8101 was varied to condition 8105 (Work limitation). This visa remained valid until 3 April 2007. On 3 April 2007 the applicant lodged an application for another student visa and was granted an associated bridging visa. On 17 May 2007 the applicant was granted the student visa and this was valid until 30 September 2009. The applicant’s student visa ceased on 30 September 2009. The applicant did not present to the Department to regularise his immigration status, lodge any further visa application or depart Australia. Consequently, the applicant became an unlawful non-citizen. [In] July 2019 the applicant was charged with criminal offences and remanded into police custody. According to the Court Attendance Notice and Fact Sheet, the applicant has been charged with [a number of] counts of dealing with information to commit/facilitate the commission of a indictable offence under s.192J of the Crimes Act 1900 (NSW) and three counts of dishonestly obtaining a financial advantage under s.129E(1)(b) of the Crimes Act 1900 (NSW). According to the Fact Sheet, the applicant registered a business known as [Business 1] [in] October 2009. The business was registered as a [specified] service. The registration of the company was cancelled [in] December 2014. The company’s ABN is [specified]. Victim 1 operates a [specified] service and obtains subcontracting [services] from larger companies. Once work has been completed, Victim 1 would invoice the larger company for the work. In early 2015 Victim 1 met the applicant. The applicant told Victim 1 that he could provide contracting services to Victim 1’s company. Months later, the applicant told Victim 1 that he had obtained [specified] services from [Business 2]. The applicant’s company subcontracted the [services] to the victim’s company. At the end of every month, Victim 1 invoiced the applicant for the work completed. This totalled $[a sum of money]. On 5 April 2015 the applicant provided [Business 2] with an invoice from the applicant’s company. The ABN on the invoice was registered to Victim 1’s company, but the bank account details were those of the applicant’s company. This was repeated on a further two invoices. The applicant provided a further five invoices to [Business 2] but this time the company name on the invoices was changed to the name of Victim 1’s company. Victim 1 has received $[a certain amount of money] for completed work with an amount outstanding being $[a larger amount of money]. [Business 2] conducted checks on the ABN provided by the applicant was identified as being invalid. The applicant provided public liability certificates and WorkCover documents under the name of Victim 1’s company [Business 2] and advised the business that this was his new company. [Business 2] advised the applicant to list this on the invoices as the applicant was still using his previous company name.

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.Nathan GoetzMember

Ratio Decidendi

Legal Principle Established

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