2300049 (Migration) - [2023] AATA 294

2300049 (Migration) [2023] AATA 294 (17 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2300049
MEMBER:Nathan Goetz
DATE:17 January 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 17 January 2023 at 4:56pm
CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicant has engaged in repeated criminal behaviour – not satisfied that applicant will not engage in criminal conduct on the bridging visa –criminal conviction – applicant has no intention to ever depart Australia voluntarily – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 375
Migration Regulations 1994, Schedule 2, r 2.20, cls 050.211, 050.223
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 under s 73 of the Migration Act 1958 (Cth) (the Act) to refuse to grant the applicant a Bridging E (Class WE) visa.
BACKGROUND
The applicant applied for the visa on 28 December 2022. At that time, Class WE contained two subclasses: Subclasses 050 and 051. These criteria for each subclass are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
On 30 December 2022 the delegate refused to grant the applicant the visa on the basis that she did not satisfy either cl 050.223 or cl 051.211 of Schedule 2 to the Regulations.
On 3 January 2023 the applicant applied to the Tribunal to review the decision.
On 4 January 2023 the Tribunal wrote to the applicant and invited her to appear at a Tribunal hearing scheduled for 6 January 2023 so she could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do so because the Tribunal decided that it should not make a decision favourable to the applicant based on the material it had.
On 6 January 2023 the applicant appeared at the Tribunal hearing. She provided written consent to the holding of the Tribunal hearing on that day.
At the conclusion of the Tribunal hearing, the applicant asked for additional time to provide evidence to address the concerns raised by the Tribunal at the Tribunal hearing which will become apparent for the reasons discussed below. The Tribunal granted the applicant until 4pm Monday 9 January 2022 to provide any material she believed would address the concerns raised by the Tribunal.
Upon receipt of the material, the applicant was invited to appear at another Tribunal hearing scheduled for 12 January 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Both Tribunal hearings were conducted via MS Teams because the applicant was in an immigration detention centre.
CRITERIA FOR THE…

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 2300049 (Migration)

Details

AGLC: 2300049 (Migration) [2023] AATA 294
Case: [2023] AATA 294
Decision Date: 17 January 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse to grant the applicant a Bridging E (Class WE) visa. The applicant, a citizen of India, applied for the visa on 28 December 2022. The delegate refused the application on the basis that the applicant did not satisfy criteria set out in Schedule 2 to the Migration Regulations 1994 (Cth), specifically clauses 050.223 and 051.211. The applicant sought review of this decision by the Tribunal.

The Tribunal was required to determine whether the applicant met the criteria for the grant of the Bridging E visa, specifically whether she would comply with any conditions imposed on such a visa (cl 050.223) and whether she was a relevant eligible non-citizen (cl 051.211). While the delegate refused on both grounds, the Tribunal initially considered whether there were grounds for the applicant to seek the Subclass 050 visa in the first place, as per cl 050.212.

The Tribunal found that the applicant did not satisfy cl 051.211, meaning she was not a relevant eligible non-citizen. Furthermore, despite the applicant's submissions, the Tribunal was not satisfied that she would abide by the conditions of a bridging visa, as per cl 050.223. This conclusion was based on the applicant's significant and repeated criminal history in Australia, which included multiple convictions for offences such as theft, possession of drugs, and threats to kill, resulting in custodial sentences and community correction orders. The Tribunal noted that the applicant had breached a community corrections order and, despite her claims of no offending since August 2020, the Tribunal could not overlook her past behaviour and the apparent lack of success of previous rehabilitative attempts. The Tribunal disregarded the delegate's recording of the criminal history, relying on more accurate court records.

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

This is an application for review of a decision made under s 73 of the Migration Act 1958 (Cth) (the Act) to refuse to grant the applicant a Bridging E (Class WE) visa.BACKGROUND The applicant applied for the visa on 28 December 2022. At that time, Class WE contained two subclasses: Subclasses 050 and 051. These criteria for each subclass are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). On 30 December 2022 the delegate refused to grant the applicant the visa on the basis that she did not satisfy either cl 050.223 or cl 051.211 of Schedule 2 to the Regulations. On 3 January 2023 the applicant applied to the Tribunal to review the decision. On 4 January 2023 the Tribunal wrote to the applicant and invited her to appear at a Tribunal hearing scheduled for 6 January 2023 so she could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do so because the Tribunal decided that it should not make a decision favourable to the applicant based on the material it had. On 6 January 2023 the applicant appeared at the Tribunal hearing. She provided written consent to the holding of the Tribunal hearing on that day. At the conclusion of the Tribunal hearing, the applicant asked for additional time to provide evidence to address the concerns raised by the Tribunal at the Tribunal hearing which will become apparent for the reasons discussed below. The Tribunal granted the applicant until 4pm Monday 9 January 2022 to provide any material she believed would address the concerns raised by the Tribunal. Upon receipt of the material, the applicant was invited to appear at another Tribunal hearing scheduled for 12 January 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. Both Tribunal hearings were conducted via MS Teams because the applicant was in an immigration detention centre.CRITERIA FOR THE VISA The delegate refused to grant the bridging visa on the basis that the applicant did not satisfy cl 050.223 or cl 051.211 of Schedule 2 to the Regulations. While the Tribunal would ordinarily restrict itself to considering the same criteria as the delegate, the Tribunal is not required to do so. Clause 050.223 relates to whether the applicant would comply with any conditions that would be imposed on a bridging visa if granted. The ability to consider the compliance conditions is contingent on their being grounds for the grant of the visa in the first place: cl 050.212. Having considered the material initially contained in the visa application, the Tribunal was not satisfied (unlike the delegate) that there were grounds for the applicant to seek the 050 Subclass visa. The Tribunal advised the applicant that this new issue was the matter being considered by the Tribunal and that, in the event that the Tribunal was satisfied that she met cl 050.212, she would be invited again to appear at a Tribunal hearing to discuss whether she met cl 050.223.The grounds for seeking the visa - cl 050.212

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.Nathan GoetzMember

Ratio Decidendi

Legal Principle Established

The material is disclosable to the applicant and was discussed in the course of the review.CONSIDERATION AND FINDINGS The Tribunal considered all the evidence presented in the review application and visa application. The applicant identifies as a [age]-year-old female citizen of India presently located in Australia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Whether the applicant will abide by conditions – cl 050.223 Despite what the applicant told the Tribunal, the Tribunal is not satisfied that the applicant would abide by all conditions that would attach to the bridging visa for the following reasons.Condition 8564 The applicant has a significant criminal history in Australia. The applicant’s criminal history is detailed in the delegate decision record. It appears that it was incorrectly recorded by the delegate because that history is not consistent with the Victoria Police Criminal History Report contained in the Department file, nor in the Notices of Order Made that the Tribunal obtained from the Victorian Magistrates’ Court. The Tribunal also notes that at the Tribunal hearing on 6 January 2022, the applicant specifically denied that she had appeared at a court and been sentenced for matters which the delegate recorded as forming part of her criminal history. It is regrettable that the delegate did not record the applicant’s criminal history accurately, as this could have led the Tribunal to make findings on an incorrect factual basis. The Tribunal disregard’s the delegate’s recording of the applicant’s criminal history as contained in the decision record. The Tribunal is satisfied that the applicant’s criminal history is as follows (and has disregarded matters that were the subject of a diversion).[Date] October 2020: [First] Magistrates’ Court1 x possession of cannabis1 x deal in property suspected as proceeds of crime5 x contravention of personal safety intervention order2 x make threat to kill1 x commit indictable offence while on bail7 x shoptheft5 x theftSentenced to a total effective sentence of 16 days imprisonment, a 12-month community corrections order and a fine of $1000.[Date] May 2021: [Second] Magistrates’ Court1 x theft of a motor vehicle 1 x commit indictable offence while on bail1 x possession of cannabis1 x possession of a drug of dependence (not named)1 x possession of methylamphetamineSentenced to a total effective sentence of 34 days imprisonment.[Date] June 2022: [Third] Magistrates’ Court1 x retention of stolen property1 x deal in property suspected as being proceeds of crime1 x drive while disqualified1 x contravention of community corrections orderSentenced to a total effective sentence of 30 days imprisonment and a fine of $1000 Although the Tribunal accepts the applicant’s submission that she had not engaged in criminal offending since August 2020 (being the last date recorded for some of the dates of offending) the Tribunal cannot overlook the fact that the applicant has engaged in repeated criminal behaviour and that attempts to assist her appear to have been unsuccessful, noting the imposition of a community corrections order that was breached by not engaging with that order on her own admission to the Tribunal.