2217771 (Migration) - [2022] AATA 5074

2217771 (Migration) [2022] AATA 5074 (16 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2217771

MEMBER:Alan McMurran
DATE:16 December 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 16 December 2022 at 11:07am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – acceptable arrangements to depart Australia – prior application for a permanent visa – extended periods of unlawful residence – no work condition – applicant convicted of drug charges – no financial means – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 189
Migration Regulations 1994, Schedule 2, cls 050.212, 050.223, 050.515; Schedule 8
CASES
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
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 lodged 4 December 2022 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, [named], a citizen of the Socialist Republic of Vietnam, applied for the visa on 29 November 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 2 December 2022 on the basis that the delegate was not satisfied that the applicant will abide by conditions if granted a BVE.[1] The decision followed an interview with a departmental officer and the applicant on 30 November 2022.
[1] clause 050.223 of Schedule 2 to the Regulations
The applicant appeared before the Tribunal on 15 December 2022 to give evidence and present arguments. An interpreter in the Vietnamese and English languages was arranged and available to assist the applicant and the Tribunal. The hearing was conducted by video and recorded. The applicant was not represented and had no assistance for the hearing.
The applicant consented to the hearing date and confirmed he was ready and willing to proceed as scheduled. The applicant was located in the [named detention centre] and the Member sitting in Sydney. The Tribunal did not detect any technical issues or difficulties occasioned by the hearing process or with interpretation, and none were raised by the applicant. The applicant confirmed that he had provided all information he sought to provide for consideration…

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 2217771 (Migration)

Details

AGLC: 2217771 (Migration) [2022] AATA 5074
Case: [2022] AATA 5074
Decision Date: 16 December 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Bridging E (Class WE) visa, Subclass 050 (Bridging (General)). The dispute centred on whether the applicant would abide by the conditions of the visa and whether he was making acceptable arrangements to depart Australia. The applicant, a Vietnamese citizen who had been in Australia since April 2008, had a complex visa history and had been in Australia unlawfully for extended periods.

The primary legal issues before the Tribunal were whether the applicant would comply with any conditions imposed on a bridging visa, specifically a "no work" condition and a condition prohibiting engagement in criminal activity. Additionally, the Tribunal had to determine if the applicant was making, or was the subject of, acceptable arrangements to depart Australia. The Tribunal had regard to Department policy, the relevant legislative framework, and oral evidence provided by the applicant.

The Tribunal reasoned that the applicant's history, including extended periods of unlawful residence and a conviction for drug charges concluded in October 2021, raised significant concerns about his willingness to abide by visa conditions. The applicant's lack of financial means further complicated the assessment of his ability to make arrangements for departure. The Tribunal noted that the review was not concerned with his prior protection visa application or the criminal proceedings themselves, but rather their relevance to his current visa application and his compliance with potential visa conditions.

Ultimately, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of a Subclass 050 Bridging (General) visa. Consequently, the Tribunal affirmed the Department's 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

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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 will abide by conditions imposed on the visa. An issue also arises concerning whether the applicant is making, or is the subject of, acceptable arrangements to depart Australia.[2] [2] clause 050.212 (2) The Tribunal has available for consideration information from the Department provided electronically, together with the Tribunal’s own file and information provided with the Tribunal application. The Tribunal also has regard to Department policy, the statutory framework in the Act and the Regulations and the oral evidence from the hearing. The applicant made no written submissions prior to the hearing and relied upon his oral evidence made to the Tribunal at the hearing.Background and history-the Tribunal hearing The applicant gave evidence about his family background. He is [an age]-year-old Vietnamese citizen who arrived in Australia [in] April 2008, on a Subclass 679 sponsored family visitor visa. The applicant’s visa history is set out below. He has not returned to Vietnam since arriving in Australia. The applicant was married in Vietnam in 1993 but is now separated and he thinks divorced. He had [number] children from the marriage, who are now aged [respective ages]. He said the children live with their mother. He was asked about contact with the family members. He said he has not spoken to his wife but has telephoned his children. He said he last spoke to them about a year ago by telephone and with all [his] children. He then recalled he had spoken to them approximately 2 weeks ago, when he contacted them by video telephone. He said he again spoke to all [his] children about how they were doing, whether they were healthy, and so on. He said they were aware he was in detention in Australia but did not understand anything about that. He said not much was discussed. The applicant said his parents had both passed away, his mother in 2014 and his father in 2019. He said his children were also now independent and he was not called upon to support his Vietnamese family financially. He said he has [number] siblings still living in Vietnam and an uncle and cousin living in Melbourne. He said his uncle and cousin are Australian citizens. He said his parents had been fishermen and lived in a village in central Vietnam in Quang Binh province where he grew up. The Tribunal explained that the review concerned the Department’s refusal of his bridging visa application and was not concerned with his prior protection visa application and outcome, or the criminal proceedings in which he had been involved, and which were concluded in October 2021. The Tribunal explained the Department’s reasons for refusing the visa and the Tribunal’s concern whether conditions which might be imposed on the grant of a bridging visa would be complied with and taking into account the applicant’s prior visa history. In particular, the Tribunal was concerned about a condition that the applicant could not work, and a further condition that he not become engaged in criminal activity.

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.Alan McMurranMember

Ratio Decidendi

Legal Principle Established

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