2200648 (Migration) - [2022] AATA 1979

2200648 (Migration) [2022] AATA 1979 (27 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2200648
MEMBER:Katie Malyon
DATE:27 January 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 27 January 2022 at 2:34 pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – no criminal conduct requirement – criminal history – Assault occasioning actual bodily harm – no remorse expressed – multiple pending charges – sexual intercourse without consent – released on bail – decision under review affirmed
LEGISLATION
Bail Act 2013 (NSW), ss 17, 19
Crimes Act 1900 (NSW), s 61I
Migration Act 1958 (Cth), ss 73, 74, 116, 189, 269, 359AA
Migration Regulations 1994 (Cth), rr 2.10A, 2.20, 4.07; Schedule 2, cls 050.223, 050.613A, 050.618, 051.211; Schedule 8, Condition 8564
CASES
Applicant VAAN of 2001 v MIMA [2002] FCA 197
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, Pakistani national [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 13 January 2022. At that time, Class WE contained 2 subclasses: Subclass 050 Bridging (General); and, Subclass 051 Bridging (Protection Visa Applicant). In the present case, [the applicant] is seeking to satisfy the criteria for the grant of a visa in either of these subclasses. Criteria for these visas are set out respectively in Part 050 and Part 051 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The decision to refuse to grant [the applicant] a Subclass 050 Bridging (General) visa was made on 17 January 2022 on the basis that he does not satisfy cl.050.223 of Schedule 2 to the Regulations because the delegate found that [the applicant] will not comply with visa conditions imposed including, relevantly, condition 8564 (Must not engage in criminal conduct). Further, the delegate felt that a security would not act as an incentive for [the applicant] to abide by the proposed visa conditions, in particular, condition 8564.
In relation to [the applicant]’s Subclass 051 Bridging (Protection Visa Applicant) visa, the delegate refused the application on the basis that [the applicant] does not satisfy the criteria in cl.051.211 of Schedule 2 to the Regulations because he is not an ‘eligible non-citizen’ of the kind set out in r.2.20(7), (8), (9), (10) or (11) of the Regulations.
Following lodgement of the review application, the Tribunal considered the information before it and was unable to make a decision favourable to [the applicant]. It invited…

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 2200648 (Migration)

Details

AGLC: 2200648 (Migration) [2022] AATA 1979
Case: [2022] AATA 1979
Decision Date: 27 January 2022

CaseChat Overview and Summary

This matter concerned an appeal to the Tribunal regarding the refusal of a Bridging E (Class WE) visa for the applicant. The central dispute revolved around whether the applicant would abide by any visa conditions imposed, particularly in light of his criminal history. Alternatively, the Tribunal considered whether the applicant qualified as an ‘eligible non-citizen’ for the purpose of assessing criteria for a Subclass 051 Bridging (Protection Visa Applicant) visa, given his application for a Protection visa.

The Tribunal was required to determine two primary issues. Firstly, whether the applicant would comply with the conditions of a Bridging E visa. Secondly, if the applicant was to be considered for a Subclass 051 Bridging (Protection Visa Applicant) visa, whether he met the definition of an ‘eligible non-citizen’ under the relevant regulations.

The Tribunal reasoned that the applicant’s criminal history, including a guilty plea for assault occasioning actual bodily harm and two pending charges for sexual intercourse without consent, demonstrated a pattern of conduct that raised serious concerns about his future compliance with visa conditions. The Tribunal noted the applicant's lack of expressed remorse and the ongoing nature of serious charges. Consequently, the Tribunal found that the applicant did not meet the criteria for an ‘eligible non-citizen’ as defined in the regulations, and therefore did not satisfy the requirements for the grant of a Subclass 051 Bridging (Protection Visa Applicant) visa.

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

Orders

Orders of the court

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Background

Background to the litigation

The issue in this case is whether the applicant will abide by any visa conditions imposed on a Subclass 050 Bridging (General) visa. Alternatively, as the applicant has applied for a Protection visa, the issue is whether he is a relevant ‘eligible non-citizen’ such that the Tribunal should consider criteria for grant of a Subclass 051 Bridging (Protection Visa Applicant) visa. Background [The applicant] is [age] years old. As confirmed by Departmental records and his oral evidence at the hearing, [the applicant] arrived in Australia [in] July 2017 as the holder of a Student Subclass 500 visa to undertake a Bachelor of [Discipline 1] at [University 1]. He changed to study a Bachelor of [Discipline 2] at [Education Provider 1] in March 2018. Since arriving in Australia, [the applicant] has left on 2 occasions only: for just over a month in August 2018 and then 2 weeks in late January / early February 2019. Whilst giving oral evidence during the hearing, [the applicant] accessed a copy of the delegate’s decision to refuse his Bridging E (Class WE) visa application on his mobile phone. He confirmed the information set out in that decision accurately reflects both his immigration history and his criminal history in Australia. [The applicant] also gave the Tribunal further details in relation to the 3 criminal charges set out in the delegate’s decision, 2 of which are still pending before the [Court]. The Tribunal has summarised below relevant aspects of [the applicant]’s background in this regard. On 26 June 2019, [the applicant] pleaded guilty to the charge of Assault occasioning actual bodily harm - T2. This involved an incident with another taxi driver in [named] Street, [Suburb 1] when both taxi drivers parked their vehicles in a bus lane, late one night. After being found guilty by the court the Assault occasioning actual bodily harm - T2 charge was finalised without proceeding to conviction and [the applicant] was sentenced to a Conditional Release Order for a period of [number] months. [The applicant] confirmed that, as set out in the delegate’s decision, on 11 September 2019 he was remanded into criminal custody at [Suburb 2] and charged with Sexual intercourse without consent – SI. This charge (Charge No. H7188XXXX) relates to an alleged incident on 29 June 2019 of having non-consensual sexual intercourse with a woman who had been a passenger in his taxi. [The applicant] was granted bail by the NSW Police pending the matter coming before the court. The bail conditions included that he must report to the police on a weekly basis. On 25 September 2019 when, consistent with his bail condition he reported to the [Suburb 2] police, [the applicant] was arrested again and charged with Sexual intercourse without consent – SI in relation to his alleged conduct with another woman. This charge (Charge No. H7216XXXX) relates to conduct on 25 April 2019 when he is alleged to have had non-consensual sexual intercourse in his taxi with a different woman passenger. [The applicant] was taken into custody pending hearing of his 2 sexual offence charges.

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 EVIDENCEIssue The issue in this case is whether the applicant will abide by any visa conditions imposed on a Subclass 050 Bridging (General) visa. Alternatively, as the applicant has applied for a Protection visa, the issue is whether he is a relevant ‘eligible non-citizen’ such that the Tribunal should consider criteria for grant of a Subclass 051 Bridging (Protection Visa Applicant) visa. Background [The applicant] is [age] years old. As confirmed by Departmental records and his oral evidence at the hearing, [the applicant] arrived in Australia [in] July 2017 as the holder of a Student Subclass 500 visa to undertake a Bachelor of [Discipline 1] at [University 1]. He changed to study a Bachelor of [Discipline 2] at [Education Provider 1] in March 2018. Since arriving in Australia, [the applicant] has left on 2 occasions only: for just over a month in August 2018 and then 2 weeks in late January / early February 2019. Whilst giving oral evidence during the hearing, [the applicant] accessed a copy of the delegate’s decision to refuse his Bridging E (Class WE) visa application on his mobile phone. He confirmed the information set out in that decision accurately reflects both his immigration history and his criminal history in Australia. [The applicant] also gave the Tribunal further details in relation to the 3 criminal charges set out in the delegate’s decision, 2 of which are still pending before the [Court]. The Tribunal has summarised below relevant aspects of [the applicant]’s background in this regard. On 26 June 2019, [the applicant] pleaded guilty to the charge of Assault occasioning actual bodily harm - T2. This involved an incident with another taxi driver in [named] Street, [Suburb 1] when both taxi drivers parked their vehicles in a bus lane, late one night. After being found guilty by the court the Assault occasioning actual bodily harm - T2 charge was finalised without proceeding to conviction and [the applicant] was sentenced to a Conditional Release Order for a period of [number] months. [The applicant] confirmed that, as set out in the delegate’s decision, on 11 September 2019 he was remanded into criminal custody at [Suburb 2] and charged with Sexual intercourse without consent – SI. This charge (Charge No. H7188XXXX) relates to an alleged incident on 29 June 2019 of having non-consensual sexual intercourse with a woman who had been a passenger in his taxi. [The applicant] was granted bail by the NSW Police pending the matter coming before the court. The bail conditions included that he must report to the police on a weekly basis. On 25 September 2019 when, consistent with his bail condition he reported to the [Suburb 2] police, [the applicant] was arrested again and charged with Sexual intercourse without consent – SI in relation to his alleged conduct with another woman. This charge (Charge No. H7216XXXX) relates to conduct on 25 April 2019 when he is alleged to have had non-consensual sexual intercourse in his taxi with a different woman passenger. [The applicant] was taken into custody pending hearing of his 2 sexual offence charges.

Decision

Reasons for decision

The Tribunal finds that [the applicant] is not an ‘eligible non-citizen’ as set out in r.2.20(7), (8), (9), (10) or (11) of the Regulations as required by cl.051.211 of Schedule 2 to the Regulations. Accordingly, he does not meet the requirements for the grant of a Subclass 051 Bridging (Protection Visa Applicant) visa.DECISION The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.Katie MalyonMember

Ratio Decidendi

Legal Principle Established

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