2114983 (Migration) - [2021] AATA 4946

2114983 (Migration) [2021] AATA 4946 (29 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2114983
MEMBER:Kira Raif
DATE:29 October 2021
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 October 2021 at 5:01pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – substantial outstanding debt – strong incentive and a desire to engage in employment in Australia – applicant has no intention to ever depart Australia voluntarily – wilfully acting in breach of the conditions of visa – not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to him – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 269
Migration Regulations 1994, Schedule 2, r 2.20, cls 050.211, 050.223, Schedule 8
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 Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (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 20 October 2021. The decision to refuse to grant the visa and the decision relating to requiring a security was made on 25 October 2021 on the basis that the delegate was not satisfied the applicant would abide by visa conditions, as required by cl. 050.223. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 29 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
At the time the application was made, 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 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria include 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…

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 2114983 (Migration)

Details

AGLC: 2114983 (Migration) [2021] AATA 4946
Case: [2021] AATA 4946
Decision Date: 29 October 2021

CaseChat Overview and Summary

The applicant sought review of a decision not to grant a Subclass 050 (Bridging (General)) visa. The applicant had a substantial outstanding debt and expressed a strong desire to work in Australia, indicating no intention to depart voluntarily. The Tribunal was not satisfied that the applicant would abide by the conditions of a bridging visa if granted.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the grant of a Bridging E visa. This involved assessing whether the applicant's circumstances, including their substantial debt and expressed intention to remain in Australia, demonstrated a wilful breach of visa conditions and a likelihood of future compliance.

The Tribunal reasoned that the applicant's substantial outstanding debt and expressed intention to remain in Australia indefinitely, without any intention to depart voluntarily, indicated a wilful disregard for visa conditions. Given this history and expressed intent, the Tribunal was not satisfied that the applicant would comply with the conditions of a bridging visa. Consequently, the applicant did not satisfy the criteria for the grant of the visa.

The Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) 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

Full text does not contain this section.

Decision

Reasons for decision

For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa. DECISION The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.Kira Raif Senior Member

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.