2219046 (Migration) - [2023] AATA 815

2219046 (Migration) [2023] AATA 815 (6 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Nazim El-Bardouh
CASE NUMBER:  2219046
MEMBER:Brendan Darcy
DATE:6 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:
· cls 050.211, 050.212, 050.221 and 050.222 of Schedule 2 to the Regulations; and
·cl 050.223 of Schedule 2 to the Regulations.
The Tribunal also directs the primary decision maker
·to indicate to the applicant that conditions 8101, 8207, 8401, 8506, 8508 and 8564 will be imposed if the visa is granted; and
·to require a security of 15,000 Australian dollars for compliance with the conditions.

Statement made on 06 January 2023 at 12:04am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful non-citizen – substantive visa application – abide by conditions imposed – no work requirement – reporting and notification requirements – adverse migration history – no criminal conduct requirement – drug trafficking offences – reasonable security amount – explanations for non-compliant behaviour – capacity and willingness to engage with the authorities – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.221, 050.222, 050.223; Schedule 8, Conditions 8101, 8207, 8401, 8508, 8522, 8564
CASES
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
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 19 December 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 22 December 2022 on the basis that the applicant will not abide by condition to be imposed on the applicant pursuant to cl 050.223.
On 4 January 2023, the applicant appeared before the Tribunal, via an audio-visual link between the Tribunal’s Melbourne facilities and Melbourne Immigration Transit Accommodation (MITA), to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] and [Mr B] who claimed to be close friends with the applicant.
The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages. The applicant was represented in relation…

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 2219046 (Migration)

Details

AGLC: 2219046 (Migration) [2023] AATA 815
Case: [2023] AATA 815
Decision Date: 6 January 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant who arrived in Australia in February 2013 and subsequently became an unlawful non-citizen in November 2014, remaining in the community for over eight years. In December 2022, the applicant was arrested and charged with serious drug trafficking and fraud offences, including dealing with suspected proceeds of crime and using a fraudulent passport. Following his arrest, the applicant was detained by the Australian Border Force and subsequently applied for a permanent protection visa and a Bridging Visa E, disclosing his actual identity as an Albanian national.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Bridging E (Class WE) visa (Subclass 050). This involved assessing his compliance with migration law, particularly in light of his adverse migration history, including his prolonged period as an unlawful non-citizen and his recent criminal charges. The Tribunal also had to consider the conditions that would be imposed on the visa and the potential requirement for a security bond.

The Tribunal reasoned that while the applicant had a significant adverse migration history and faced serious criminal charges, the matter should be remitted for reconsideration. The Tribunal directed that the applicant met specific criteria for the Subclass 050 visa, including those relating to lawful status and the absence of certain adverse information. The Tribunal also indicated that if the visa were granted, specific conditions, such as a no work requirement and reporting obligations, would be imposed, and a security of $15,000 would be required.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:·cls 050.211, 050.212, 050.221 and 050.222 of Schedule 2 to the Regulations; and·cl 050.223 of Schedule 2 to the Regulations. The Tribunal also directs the primary decision maker:·to indicate to the applicant that conditions 8101, 8207, 8401, 8506, 8508 and 8564 will be imposed if the visa is granted; and·to require a security of 15,000 Australian dollars for compliance with the conditions.Brendan DarcyMember

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant first arrived in Australia [in] February 2013 while holding a Class FA Subclass 601 Electronic Travel Authority (visitor) visa in the name of [Alias 1]. Under this name, the applicant claimed to be born on [Date 1] and was a national of the Hellenic Republic (Greece). The applicant travelled on a bogus or fraudulently obtained Greek passport on that false identity. On 12 April 2013, the applicant lodged a Class TU Subclass 570 student visa application. The applicant was granted associated Bridging Visa A (or BVA) while the student visa application was being assessed. On 8 May 2013, the applicant was granted a Subclass 570 student visa which was valid until 9 July 2014. The purpose of the student visa was to study English on a full-time basis. On 23 June 2013, the applicant applied for a further Subclass 570 visa and was granted a further BVA while the application was assessed. On 20 October 2014, a delegate refused to grant the applicant a student visa and the applicant became an unlawful non-citizen after his BVA expired on 17 November 2014. From 18 November 2014, the applicant remained in the community as an unlawful non-citizen for over eight years. On [date] December 2022, the applicant was arrested by Victoria Police’s Organised Crime Unit. The applicant was charged with the following offences: Traffic a drug of dependence, namely cocaine; Possess a drug of dependence, namely cocaine; Deal with property, approximately 50,000 AUD currency and luxury goods valued in excess of 100,000 AUD in total, suspected of being the proceeds of crime; Provided false name to Police ([Alias 1]); Use of false document (fraudulent passport) with the intent to induce another person, namely Victoria Roads to obtain Victorian driver’s licence. On [date] December 2022, the applicant appeared before Melbourne Magistrates’ Court for the above charges. On the same day, the applicant was released on bail following an adjourned court hearing. As an unlawful non-citizen, the applicant was then detained by the Australian Border Force (ABF) under section 189 of the Act and transferred to MITA, where the applicant has remained. On 19 December 2022 the Department received a Class XA Subclass 866 permanent protection visa application and an associated Bridging Visa E (BVE) application by post. In the applicant’s application for protection and bridging visas, the applicant submitted a statutory declaration, dated 15 December 2022, in which he disclosed his actual identity to be [the applicant], a national of the Republic of Albania, with the claimed date of birth of [Date 2]. The statutory declaration included his claims that he is owed Australia’s protection obligations. A copy of the applicant’s Albanian passport and other identity documents was submitted to corroborate this claim about the applicant’s national identity.