2004797 (Migration) - [2020] AATA 2431

2004797 (Migration) [2020] AATA 2431 (18 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2004797
MEMBER:Peter Vlahos
DATE:18 March 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 18 March 2020 at 12:15pm
CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful Non-Citizen – breach of condition 8101 – applicant failed to uphold visa conditions – work unlawfully – not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to her – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 189
Migration Regulations 1994, Schedule 2, cls 050.221, 050.223
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 4 March 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 10 March 2020 on the basis that that the applicant did not meet the requirements of cl.50.223 and 51.211.The applicant appeared before the Tribunal on 18 March 2020 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 the background of the applicant.
The applicant is a citizen of Malaysia and originates from Penang. She is [age] years of age and is not married. She has family living in Malaysia which consists of her older sister and brother and maternal grandmother. Her parents are both deceased. While in Malaysia, the applicant told the Tribunal that she worked as a ‘[specified occupation].’
The applicant arrived in Australia [in] January 2015 on a Tourist visa [and] on 21 April 2015 she applied for a Student visa [and] was granted a BVA (Bridging visa) on 21 April 2015. On 30 July 2015 the applicant was granted her [Student visa]. On 3 August 2016 the applicant’s…

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 2004797 (Migration)

Details

AGLC: 2004797 (Migration) [2020] AATA 2431
Case: [2020] AATA 2431
Decision Date: 18 March 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Bridging E (Class WE) visa by a citizen of Malaysia. The applicant had arrived in Australia in January 2015 and held various visas, including a Student visa which ceased in August 2016, rendering her an unlawful non-citizen until she lodged a Protection visa in August 2019. During this period, she was granted a Bridging visa C, with a condition prohibiting work. Subsequently, the applicant was found to have breached condition 8101 by working unlawfully and was detained.

The primary legal issue before the Tribunal was whether the applicant should be granted a Bridging E visa, specifically whether the Tribunal was satisfied that the applicant would abide by any conditions imposed on such a visa, as required by clause 050.223 of the Migration Regulations 1994. This clause necessitates consideration of the applicant's likely future conduct, including their past immigration history, the significance and wilfulness of any breaches, the presence of mitigating circumstances, and any demonstrated contrition.

The Tribunal reasoned that in assessing an applicant's likelihood to abide by visa conditions, regard must be had to their past conduct, referencing the principles established in *Applicant VAAN of 2001 v MIMA* and *Liu v MIAC*. The applicant's history of remaining in Australia as an unlawful non-citizen for an extended period and her subsequent breach of a work prohibition condition on her Bridging visa C were significant factors. The Tribunal was not satisfied that the applicant would abide by the conditions of a Bridging E visa, even if a financial incentive were considered, leading to the affirmation of the original decision.

Orders

Orders of the court

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Background

Background to the litigation

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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 the background of the applicant. The applicant is a citizen of Malaysia and originates from Penang. She is [age] years of age and is not married. She has family living in Malaysia which consists of her older sister and brother and maternal grandmother. Her parents are both deceased. While in Malaysia, the applicant told the Tribunal that she worked as a ‘[specified occupation].’ The applicant arrived in Australia [in] January 2015 on a Tourist visa [and] on 21 April 2015 she applied for a Student visa [and] was granted a BVA (Bridging visa) on 21 April 2015. On 30 July 2015 the applicant was granted her [Student visa]. On 3 August 2016 the applicant’s Student visa [ceased]. The applicant remained an unlawful non-citizen until she lodged her Protection visa on 26 August 2019. The applicant was also granted the accompanying BVC (Bridging visa C) which allowed the applicant to remain in Australia on the condition she did not work. On 4 March 2020 following an Australian Border Force (ABF) operation, the applicant was found and charged with a breach of condition 8101 and was subsequently detained pursuant to s.189 of the Act and held in detention. 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].

Ratio Decidendi

Legal Principle Established

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