2210176 (Migration) - [2022] AATA 3339

2210176 (Migration) [2022] AATA 3339 (25 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2210176
MEMBER:Anne Grant
DATE:25 July 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 25 July 2022 at 3:43pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – complying with the visa conditions – extended period of unlawful residence – multiple visa applications and reviews – offer of a security bond – unspecified protection claims – reporting as required – offer of accommodation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 269
Migration Regulations 1994, Schedule 2, cls 050.21,3 050.612, 051.211
CASES
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Jayasinghe v MIEA (1997) 76 FCR 301
Liu v MIAC [2008] FMCA 725
SZASP v MIAC [2007] FCA 771
SZBWJ v MIAC [2008] FMCA 164
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 applied for the visa on 7 July 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 12 July 2022 on the basis that the delegate was not satisfied that the applicant would comply with the conditions of the visa if granted, such as residing at a given address, reporting as necessary or notifying the department if he changed his details.
The applicant is in immigration detention at [a named] Detention Centre. He appeared before the Tribunal on 20 July 2022 by video conference using the Microsoft Teams Application to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
During the hearing, the applicant said that he was now in a position to provide an ongoing, permanent address because his friend [Friend A] had offered him accommodation at his home in [Address 1]. At the time of the hearing, the applicant did not have any confirming information about the offer. The applicant requested seven days to provide information about accommodation available to him if he is released from immigration detention. The Tribunal agreed. On 22 July 2022, the applicant provided a copy of a…

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 2210176 (Migration)

Details

AGLC: 2210176 (Migration) [2022] AATA 3339
Case: [2022] AATA 3339
Decision Date: 25 July 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Bridging E (Class WE) visa made by an applicant who had an extended period of unlawful residence in Australia. The applicant had lodged multiple visa applications and sought reviews of various decisions, including an application for a protection visa and subsequent judicial review proceedings. The core dispute before the Tribunal was whether the applicant satisfied the criteria for the grant of a Bridging E visa, specifically whether they would abide by any conditions imposed on such a visa.

The primary legal issue before the Tribunal was whether it was satisfied, pursuant to clause 050.223 of Schedule 8 to the Migration Regulations, that the applicant would abide by any conditions imposed on a Bridging E visa if granted. This required the Tribunal to consider the applicant's likely conduct, taking into account their past immigration history, including previous breaches of immigration laws, the significance and wilfulness of those breaches, any mitigating circumstances, and evidence of contrition. The Tribunal also had to consider potential conditions that could be imposed, such as reporting requirements and living at a specified address, and whether the applicant would comply with them.

The Tribunal reviewed the applicant's extensive migration history, which included arriving on an Electronic Travel Authority, lodging a protection visa application that was refused, failing to appear for a Tribunal hearing, and multiple subsequent applications for judicial review and further visa applications. The applicant also expressed a fear of persecution in Malaysia, citing political reasons, but was reluctant to provide further details. The Tribunal considered that while the applicant might comply with a condition prohibiting study, there was insufficient evidence to satisfy it that the applicant would comply with conditions requiring reporting and residing at a specified address, particularly given their history of non-compliance with previous procedural requirements and visa conditions. The Tribunal also found that the applicant did not meet the requirements for a Bridging (Protection Visa Applicant) visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa, as it was not satisfied that the applicant would abide by the conditions that would be imposed.

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

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 satisfies the criteria in cl 050.223 of Schedule 8 to the Migration Regulations. 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]. The Tribunal confirmed the applicant’s migration history with him as follows: ·[December 2015] – Applicant arrived in Australia on UD-601 (ELECTRONIC TRAVEL AUTHORITY)·05/01/16 – The applicant lodged an application for a protection visa. He was granted a bridging visa in association with the protection visa application. ·19/05/16 – The applicant was refused a protection visa. He sought review of that decision at the Tribunal on 4 June 2016. ·25/08/16 – The applicant’s review application was listed for hearing but he did not appear. A decision was made by the Tribunal to dismiss his application and he was sent (to the email account he had provided in lodging his application) notice of the initial dismissal. The applicant was advised of the right to seek reinstatement within 14 days. ·[September 2017] – The applicant lodged an application for Judicial Review of the Tribunal’s decision to dismiss his application. ·13/09/17 – The applicant had not applied for reinstatement and the Tribunal confirmed the dismissal of his application for review. ·19/10/17 – The applicant’s bridging visa ceased. ·[February 2018] – The Federal Circuit Court dismissed the applicant’s application for review. ·10/09/18 –an Invalid bridging visa application was lodged and the applicant was notified that it was invalid. ·03/02/22 – Australia Border Force located and detained the applicant under s189(1) ·26/02/22 – The applicant lodged an application for review of the decision refusing him a protection visa (made on 19 May 2016) with the AAT. ·11/04/22 – The Tribunal decided that it did not have jurisdiction to review the application because the delegate’s decision had already been the subject of a determination in 2016. ·[July 2022] – The applicant applied for Judicial Review of the Tribunal’s decision of 11 April 2022. No hearing dates have been provided for this review·07/07/22 – The applicant applied for a bridging visa (here under review).

Decision

Reasons for decision

The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant was not refused immigration clearance at any point. The Tribunal finds that 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.Anne GrantMember

Ratio Decidendi

Legal Principle Established

The Tribunal asked the applicant what were the claims on which his protection application was based. He responded that he feared persecution in Malaysia. When asked what sort of persecution he feared, he responded only ‘political’. When asked to give more details, the applicant said that he did not wish to discuss those matters because they are dark stains on him in Malaysia and also because he has ongoing protection claims before the court. When it was noted that there had been big changes to the political landscape in Malaysia since 2017, the applicant said that despite the changes of government in Malaysia over recent years, he still claims to fear persecution there – that his issues are not issues which are resolved by a change of government. Consideration If the Tribunal is satisfied that the applicant will abide by the conditions if security of a particular amount is required, the applicant meets cl 050.223. However, if not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl 050.223 is not met. 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]. In considering the security decision, the amount of security should be a sum that is designed to secure compliance with the relevant conditions, having regard to the conditions that must be complied with, and the particular circumstances of the person bound by the requirements, notably their financial position: VAAN at [27].] In this case, cl 050.612A applies because the applicant has a current application for judicial review underway. This clause prescribes that certain conditions may be imposed. The Tribunal considers that the following conditions, as identified by the delegate, should be imposed in the circumstances of this case:8207(NO STUDY)The holder must not engage in any studies or training in Australia.8401(REPORT AT SPECIFIED TIME AND PLACE)The holder must report:(a)at the time or times; and(b)at a place or in a manner;specified by the Minister from time to time.8505(CONTINUE TO LIVE AT ADDRESS)The holder must continue to live at the address specified by the holder before the grant of the visa.Would the applicant comply with the conditions if a bridging visa was granted? The information before the Tribunal does not suggest that the applicant would wish to or would study if prohibited from doing so by a condition of a visa if granted. The Tribunal considers that the applicant would comply with condition 8207 if imposed. The Tribunal then turns to consider whether the applicant would comply with conditions 8401 and 8505.