2107342 (Migration) - [2021] AATA 2633

2107342 (Migration) [2021] AATA 2633 (17 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2107342

MEMBER:Steven Griffiths
DATE:17 June 2021
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 17 June 2021 at 12:16pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – no criminal conduct requirement – drug-related offences – mental health issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.223, 050.611B, 050.618, 050.619; Schedule 8, Conditions 8101, 8207, 8401, 8505, 8506, 8564, 8566
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 1 June 2021. 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 and that the applicant will abide by the conditions imposed.
The decision to refuse to grant the visa 4 June 2021 on the basis that the applicant had been charged [in] December 2020 for 2 drug related issues and [in] March 2021 for drug related, proceeds of crime and committing indictable offenses whilst on bail, had plead guilty and served [a period] in a correction facility.
The applicant was assisted by his registered migration agent, [name and business specified].
The applicant appeared before the Tribunal on 16 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], who is the applicant's Wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages, with the migration agent taking part.
The Tribunal resolved to allow the parties until 10.00am 17 June 2021 to provide documented evidence on the diagnosis of the mental health of the applicant. The Tribunal notes that a submission was received in the evening of the hearing day.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Department of Home Affairs file, the Tribunal file including additional information provided by the applicant, the oral…

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 2107342 (Migration)

Details

AGLC: 2107342 (Migration) [2021] AATA 2633
Case: [2021] AATA 2633
Decision Date: 17 June 2021

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa (subclass 050) before the Migration Review Tribunal. The applicant, who had a complex immigration history involving multiple visa refusals and applications for ministerial intervention, sought to demonstrate that he would abide by the conditions of the visa. The Tribunal was required to determine whether the applicant met the criteria for the grant of the Bridging E visa, specifically whether he would comply with any imposed conditions.

The Tribunal considered whether the applicant met the requirements of clauses 050.211 and 050.212 of the Migration Regulations 1994, and crucially, whether he would abide by the conditions of the visa as required by clause 050.223. The applicant contended that he met clause 050.212(3A) due to pending judicial review proceedings in the Federal Circuit Court. The Tribunal also noted that the applicant was not eligible for a Bridging (Protection Visa Applicant) visa (subclass 051).

In its reasoning, the Tribunal found that the applicant met the criteria under clauses 050.211 and 050.212, including the condition relating to pending judicial review. However, the Tribunal ultimately affirmed the decision not to grant the Bridging E visa. This affirmation was based on the Tribunal's assessment that it was not satisfied that the applicant would abide by any conditions imposed on the visa, a critical requirement under clause 050.223. The Tribunal also determined that the applicant did not meet the requirements for a Bridging (Protection Visa Applicant) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issue in this case is if the applicant will comply with conditions set with a Bridging (Class WE) general (subclass 050) visa. BACKGOUND OF THE EVIDENCE [The applicant] was born in Vietnam in [year]. He arrived in Australia [in 2008] as a dependent on a Student Visa held by his then wife, with the visa ceasing 15/12/09. On 30/12/10 he was a dependant as part of a Protection Visa application of his then wife, with the application refused 3/3/11, which was reviewed by the RRT and affirmed on 14/2/12. He was granted a dependant Student Visa on 23/1/13, with the Visa ceasing on 15/3/14. He lodged a Student Visa application in his name on 26/2/14, which was refused on 8/8/14, then reviewed by the MRT, which determined [in 2016] that there was no jurisdiction. On 25/2/16 he lodged a Partner 820 / 801 visa and was granted a Bridging Visa C, with the application refused on 26/8/16. The refusal was reviewed by MRT, who [in 2018] affirmed the decision to refuse. The Bridging Visa C ceased on 10/1/19 and he became an unlawful non-citizen on 11/1/19, then he lodged on that day a Bridging Visa E application requesting Ministerial Intervention and the grant of a visa. The Bridging Visa E ceased on 9/4/19 and from that time to 21/1/21 he was granted 12 Bridging Visa E’s while the Minister Intervention request was pending, which was finalised [in April 2021] as being Inappropriate to Consider. INFORMATION TO THE TRIBUNAL Since the Department of Home Affairs made its decision, the applicant has provided further information to the Tribunal including:- Tribunal invitation for hearing 11/6/21Representative request for postponement of hearingTribunal invitation for hearing 16/6/21Migration Agent submission, 15/6/21Federal Circuit Court of Australia, notice of filing and hearing, [in July 2021]Statutory Declaration, spouse of applicant, 9/6/21Statutory Declaration, friend of applicant, 14/6/21Report by lawyer supporting applicant in previous criminal case, 15/6/21Post hearing submission by migration agent, 16/6/21Post hearing submission of Ambulance Victoria account, dated [in August 2019], for transit of applicant to [Hospital 1]Immigration status of the applicant Clause 050.211 is met if, at the time of application: (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and (2)the applicant was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221. The Tribunal determines from the evidence that the applicant is an unlawful non-citizen located in [a detention] Centre. Accordingly, the applicant meets cl.050.211(1). The Tribunal determines from the evidence that the applicant is not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17). Accordingly, the applicant meets cl.050.211(2). Therefore, the applicant meets cl.050.211.The grounds for seeking the visa

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.Steven GriffithsMember

Ratio Decidendi

Legal Principle Established

Since the Department of Home Affairs made its decision, the applicant has provided further information to the Tribunal including:- Tribunal invitation for hearing 11/6/21Representative request for postponement of hearingTribunal invitation for hearing 16/6/21Migration Agent submission, 15/6/21Federal Circuit Court of Australia, notice of filing and hearing, [in July 2021]Statutory Declaration, spouse of applicant, 9/6/21Statutory Declaration, friend of applicant, 14/6/21Report by lawyer supporting applicant in previous criminal case, 15/6/21Post hearing submission by migration agent, 16/6/21Post hearing submission of Ambulance Victoria account, dated [in August 2019], for transit of applicant to [Hospital 1]Immigration status of the applicant Clause 050.211 is met if, at the time of application: (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and (2)the applicant was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221. The Tribunal determines from the evidence that the applicant is an unlawful non-citizen located in [a detention] Centre. Accordingly, the applicant meets cl.050.211(1). The Tribunal determines from the evidence that the applicant is not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17). Accordingly, the applicant meets cl.050.211(2). Therefore, the applicant meets cl.050.211.The grounds for seeking the visa At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221. Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed. In this case, the applicant is seeking to meet cl.050.212(3A) as he has a Federal Circuit Court hearing scheduled for [date in] July 2021. The applicant does not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the applicant meets cl.050.212. Accordingly, the applicant meets cl.050.212. Whether the applicant continues to satisfy the time of application criteria Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl.050.211 and 050.212 and therefore meets cl.050.221.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.