2301017 (Migration) - [2023] AATA 373

2301017 (Migration) [2023] AATA 373 (7 February 2023)
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DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2301017

MEMBER:Justin Meyer
DATE:7 February 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 7 February 2023 at 3:31pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – offer of a security bond – applicant convicted of several offences – periods of unlawful residence – no work condition – drug addiction – financial hardship – separation from family – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65, 73, 189, 269
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.221, 050.223, 050.616, 051.211; Schedule 8; r 2.20
CASES
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Liu v MIAC [2008] FMCA 725
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), and a decision made by an authorised officer relating to requiring a security under s 269 of the Act.
The applicant applied for the visa on 23 January 2023. 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 and the decision relating to requiring a security was made on 25 January 2023 on the basis that he was not satisfied the applicant would comply with the conditions imposed on the visa for the following reasons.
·No work condition (8101):
Despite financial and accommodation support from [Partner A] and his cousin [Cousin A], he had no savings and wanted to lodge a partner visa application he has a [Agency 1] debt of $10K. This provides him with a strong incentive to work. Therefore the delegate was not satisfied that the applicant would abide by condition 8101.
·Reside at specified address (8505) and report as directed (8401)
The delegate was not satisfied the applicant would abide by these conditions given this history of poor compliance with Australian law,
·Must not engage in criminal conduct (8564)
The applicant admitted at interview that he was addicted to heroin and meth during the period 2019 to 2021 and that he only stopped and got treatment once he was in prison. 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 2301017 (Migration)

Details

AGLC: 2301017 (Migration) [2023] AATA 373
Case: [2023] AATA 373
Decision Date: 7 February 2023

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa by an unlawful non-citizen. The applicant sought review of a decision not to grant this visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for the grant of a Subclass 050 visa, as set out in Part 050 of Schedule 2 to the Migration Regulations 1994 (Cth). This involved determining if the applicant met the requirements of clauses 050.211 and 050.212 at the time of application and continued to satisfy these criteria at the time of the decision, pursuant to clause 050.221.

The Tribunal found that the applicant met clause 050.211 as he was an unlawful non-citizen at the time of application and continued to be so at the time of the decision, and was not an eligible non-citizen of a kind specified in regulation 2.20. Furthermore, the Tribunal was satisfied that clause 050.212(3A) was met, as the applicant had made a valid application for a substantive visa (a Protection visa) and was pursuing judicial review of its refusal in the Federal Court of Australia. Consequently, the Tribunal concluded that the applicant met clause 050.221. However, the Tribunal also considered an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa, which the applicant did not meet the criteria for.

The Tribunal affirmed the 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

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 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)Immigration status of the applicant - cl 050.211 Clause 050.211 is met if, at the time of application: (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and (2)the applicant was not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). The applicant must continue to satisfy this criterion at the time of decision: cl 050.221. At the time of his application for a bridging visa the applicant was an unlawful citizen. Accordingly, he meets cl 050.211(1). Based on the evidence before available, the Tribunal accepts that the applicant was not an eligible non-citizen, of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). Accordingly, he meets cl 050.211(2) and cl 050.211. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl 050.211 and he is in detention as an unlawful non-citizen and therefore cl 050.221.The grounds for seeking the visa - cl 050.212 At the time of the visa application, the applicant must meet one of the alternatives set out in cl 050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl 050.221. The applicant meets this criterion as he hass applied for a Substantive visa and is appealing in court the result of a protection visa which is a Substantive visa applicationJudicial review Subclause 050.212(3A) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and either the applicant has applied for judicial review of a refusal decision or the Minister has applied for judicial review of a decision. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s 5(1) of the Act. The applicant applied for a Protection visa (sub-class 866) on 30 September 2021. It was deemed valid on 1 October 2021. The Department refused to grant the applicant the visa on 28 October 2021. He subsequently sought review at the Tribunal. A differently constituted Tribunal affirmed the Department’s refusal decision on 18 January 2022. On 10 June 2022 the applicant appealed the decision in the Federal Circuit and Family Court of Australia and in turn appealed that court’s judgment to the Federal Court of Australia where it presently is filed. On that basis, the Tribunal is satisfied that the requirements of cl 050.212(3A)] in Schedule 2 of the Regulations are met. Whether the applicant continues to satisfy the time of application criteria - cl 050.221

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.Justin MeyerMember

Ratio Decidendi

Legal Principle Established

The issue in this case is whether the applicant satisfies 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)Immigration status of the applicant - cl 050.211 Clause 050.211 is met if, at the time of application: (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and (2)the applicant was not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). The applicant must continue to satisfy this criterion at the time of decision: cl 050.221. At the time of his application for a bridging visa the applicant was an unlawful citizen. Accordingly, he meets cl 050.211(1). Based on the evidence before available, the Tribunal accepts that the applicant was not an eligible non-citizen, of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). Accordingly, he meets cl 050.211(2) and cl 050.211. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl 050.211 and he is in detention as an unlawful non-citizen and therefore cl 050.221.The grounds for seeking the visa - cl 050.212 At the time of the visa application, the applicant must meet one of the alternatives set out in cl 050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl 050.221. The applicant meets this criterion as he hass applied for a Substantive visa and is appealing in court the result of a protection visa which is a Substantive visa applicationJudicial review Subclause 050.212(3A) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and either the applicant has applied for judicial review of a refusal decision or the Minister has applied for judicial review of a decision. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s 5(1) of the Act. The applicant applied for a Protection visa (sub-class 866) on 30 September 2021. It was deemed valid on 1 October 2021. The Department refused to grant the applicant the visa on 28 October 2021. He subsequently sought review at the Tribunal. A differently constituted Tribunal affirmed the Department’s refusal decision on 18 January 2022. On 10 June 2022 the applicant appealed the decision in the Federal Circuit and Family Court of Australia and in turn appealed that court’s judgment to the Federal Court of Australia where it presently is filed. On that basis, the Tribunal is satisfied that the requirements of cl 050.212(3A)] in Schedule 2 of the Regulations are met. Whether the applicant continues to satisfy the time of application criteria - cl 050.221 Clause 050.221 requires the applicant to continue to satisfy the requirements of cl 050.211 and 050.212 at the time of decision.: The Tribunal finds that at the time of decision, the applicant continues to satisfy cl 050.211 and 050.212 and therefore meets cl 050.221. The requirement to be interviewed by an authorised officer - cl 050.222