2206008 (Migration) - [2022] AATA 1964

2206008 (Migration) [2022] AATA 1964 (2 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2206008
MEMBER:Nicole Burns
DATE:2 May 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 02 May 2022 at 12:28pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – applicant convicted of criminal offences – lengthy period of unlawful residence – no work condition – immigration history – danger of re-offending – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 189, 269, 376
Migration Regulations 1994, Schedule 2, cls 050.223, 051.211; Schedule 8 Conditions 8101, 8564
CASES
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Tennakoon v MIMIA [2001] FCA 615
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).
The applicant is a national of Vietnam, born in [year]. He applied for the visa on 13 April 2022. 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 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria include cl 050.223.
The decision to refuse to grant the visa was made on 20 April 2022 on the basis that the delegate was not satisfied the applicant would abide by relevant visa conditions if the visa was granted: cl 050.223.
The applicant appeared before the Tribunal on 2 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Non-disclosure certificate
The Tribunal notes there is a certificate dated 26 April 2022 issued under s 376 of the Act on the Department’s file in this case. This section permits the Minister to certify that the disclosure, otherwise than to the Tribunal, of any matter contained in a document would be contrary to the public interest for any reason specified in the certificate. Having regard to the reasons given as to why the information should not be disclosed, the Tribunal is satisfied the certificate is valid, as discussed with the applicant at hearing.
The information covered by the certificate relates, broadly, to information pertaining to the applicant’s immigration and criminal history in Australia (for example his…

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 2206008 (Migration)

Details

AGLC: 2206008 (Migration) [2022] AATA 1964
Case: [2022] AATA 1964
Decision Date: 2 May 2022

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant the applicant a Bridging E (Class WE) visa. The applicant had a significant immigration and criminal history in Australia, including convictions for cultivating cannabis, possessing drugs, theft, and dealing in the proceeds of crime, which resulted in periods of imprisonment and detention. The applicant had also been granted a Bridging E visa on departure grounds in the past, which was valid for a limited period.

The primary legal issue before the Tribunal was whether the applicant would abide by the conditions of a Bridging E visa if it were granted, as required by clause 050.223 of the Migration Regulations 1994. This required the Tribunal to consider the applicant's likely future conduct, taking into account their past immigration and criminal history, the significance and wilfulness of any breaches of migration laws, and any mitigating circumstances or contrition. The Tribunal also considered whether the applicant met the eligibility criteria for a Subclass 051 (Bridging (Protection Visa Applicant)) visa, which was also applied for.

The Tribunal found that the applicant's extensive criminal history and lengthy periods of unlawful residence demonstrated a pattern of non-compliance with Australian laws. The Tribunal considered the applicant's past breaches of immigration laws and concluded that there was a significant risk that the applicant would not abide by the conditions of a Bridging E visa. Furthermore, the Tribunal determined that the applicant did not meet the eligibility requirements for a Subclass 051 visa.

Consequently, the Tribunal affirmed the delegate's 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

The information covered by the certificate relates, broadly, to information pertaining to the applicant’s immigration and criminal history in Australia (for example his Victorian police charge sheet), much of which has already been disclosed to the applicant by the Department, and/or is included in the delegate’s decision record (a copy of which the applicant provided to the Tribunal on review). The relevant aspects of the information are set out in detail below. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant will abide by relevant visa conditions if the bridging visa is granted.Immigration and criminal history At the Tribunal hearing the applicant confirmed his immigration and criminal history in Australia as set out in the delegate’s decision record (a copy of which was provided to the Tribunal on review) and reflected in the Department’s records as follows:·The applicant came to Australia [in] February 2015 holding a Tourist visa (Subclass FA 600), valid until [May] 2015. ·[In] June 2015 he was placed on remand in police custody, and [in] October 2015 convicted of ‘Cultivate Narcotic Plant-Cannabis’ and sentenced to [period] days (time served). ·He was released from remand [in] October 2015, detained under s189 of the Migration Act, and transferred to [a named detention centre]. ·On 3 February 2016 the applicant was granted a Bridging E visa on departure grounds, valid until 10 February 2016 and released from [a named detention centre]. ·[In] August 2021 the applicant was convicted of ‘Cultivate Cannabis, Possess Drugs, Theft, Deal Proceeds of Crime’ and sentenced to [a period] in prison. [In] August 2021 he was placed in criminal custody. ·Following his release from criminal custody [in] March 2022 the applicant was detained under s189 and transferred to [a named detention centre]. ·On 13 April 2022 the applicant lodged a Protection visa (Subclass XA866) application which is also an application for a Bridging visa: the subject of this review. 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].

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.Nicole BurnsMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.