2314552 (Migration) - [2023] AATA 3624

2314552 (Migration) [2023] AATA 3624 (26 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Unrepresented
CASE NUMBER: 2314552

MEMBER:Kate Chapple
DATE:26 September 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 26 September 2023 at 7:19am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by the visa conditions – immigration history – periods of unlawful residence – domestic violence order – no work condition – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 73, 269
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.221-224, 050.617-618; 051.211; Schedule 8
CASES
Applicant VAAN of 2001 v MIMA (VAAN) (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 13 September 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 those set out in cl 050.211 of Schedule 2.
The delegate’s decision to refuse to grant the visa and the decision relating to requiring a security was made on 15 September 2023 on the basis that: a) the delegate was not satisfied that if the visa was granted the applicant would comply with the conditions imposed on the visa because of his previous behaviour and immigration history; and b) the delegate was not satisfied that any amount would secure the applicant’s compliance, and therefore did not request that a security be provided.
The applicant applied for review on 15 September 2023.
The applicant appeared before the Tribunal on 25 September 2023 to give evidence and present arguments with the assistance of an interpreter in the Bislama and English languages.
The applicant was unrepresented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
The applicant gave evidence at hearing, summarised by the Tribunal as follows:
The applicant was born in Vanuatu in [specified year] and is aged [age]. He completed to [grade] of schooling. His parents, [and specified family members] live in Vanuatu. His father…

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 2314552 (Migration)

Details

AGLC: 2314552 (Migration) [2023] AATA 3624
Case: [2023] AATA 3624
Decision Date: 26 September 2023

CaseChat Overview and Summary

The applicant, who arrived in Australia in February 2020, sought review of a decision not to grant him a Bridging E (Class WE) visa. The applicant's immigration history included periods of unlawful residence, a failed protection visa application due to non-compliance with procedural requirements, and apprehension by police for breaching a domestic violence order. He had also faced criminal charges, including theft, aggravated assault, and failure to answer bail. The applicant's stated intention for seeking a protection visa was primarily to enable him to continue working in Australia, rather than to seek protection from persecution.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 050 (Bridging (General)) visa, specifically whether he satisfied the time of application and time of decision requirements, and crucially, whether he would abide by the conditions imposed on such a visa. This involved assessing his immigration status, the grounds for his visa application, and his propensity to comply with visa conditions, such as not working and not engaging in criminal behaviour. The Tribunal also considered whether the applicant met the criteria for a Subclass 051 (Bridging (Protection Visa Applicant)) visa, which he did not.

The Tribunal found that the applicant met the initial criteria for a Bridging E visa, including being an unlawful non-citizen at the time of application and not being an eligible non-citizen of a kind that would preclude him from obtaining the visa. It was also satisfied that the applicant intended to apply for a substantive visa, specifically a protection visa, which is a type of substantive visa that can be granted in Australia. However, the Tribunal was not satisfied that the applicant would abide by the conditions of a bridging visa. This was based on his history of unlawful employment, his repeated breaches of a domestic violence order, and his admission that his primary motivation for seeking a visa was to work, despite being informed that a bridging visa would prohibit employment. His past non-compliance with immigration processes and criminal behaviour also weighed against a finding that he would abide by visa conditions.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa. The applicant also failed to meet the requirements for a Subclass 051 (Bridging (Protection Visa Applicant)) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant gave evidence at hearing, summarised by the Tribunal as follows:The applicant was born in Vanuatu in [specified year] and is aged [age]. He completed to [grade] of schooling. His parents, [and specified family members] live in Vanuatu. His father is [an occupation 1], his mother a housemaid, and his wife a [an occupation 2]. The applicant was never employed in Vanuatu.The applicant came to Australia in February 2020, not ever having travelled outside Vanuatu. He came here because he wanted to help his family by purchasing land in Vanuatu and building a house. His family need him to be employed in Australia. He has never had plans to do any study or training in Australia.The applicant came on a temporary work visa, and worked on a farm in Adelaide for a year [specified duties]. He then got another temporary work visa, and worked on a farm in [Town 1] for about six months. In August 2021, the applicant applied for a protection visa. He paid his employer $200 to complete the application for him. He didn’t know what a protection visa was, nor did he ask his employer. He thought it allowed him to keep working. His employer told him he had to go to Melbourne for fingerprinting, but he was too busy, so he didn’t go. He didn’t know this would make his application invalid.The applicant understood that once his protection visa application was found to be invalid and the associated bridging visa ceased, he was unlawful. He didn’t seek any legal advice about what he should be doing to address his situation. At the time, he was working on a farm at [Town 2], Victoria, [specified duties]. Knowing he was unlawful, he continued working on the same farm [until] he was apprehended by Victoria police for breaching a domestic violence order. While working in Australia, he has sent $400-500 twice a month to his parents to help support them and his children.The applicant doesn’t have friends in Australia. He has been in a relationship here for about two years, which ended when he breached the domestic violence order and the police apprehended him. He can’t remember the date of the order, it was sometime last year. The conditions of the order were to have no contact and stay 100 metres away from his partner. The applicant said he breached the order three times, while also saying he and his partner remained living together at the [Town 2] caravan park in a rented caravan. They had arguments and he came back and apologised, she wanted him back and accepted his apology, then they argued again, and she called the police. She shouldn’t have accepted him because she knew it was in breach of the order. The applicant thought he was guilty because he breached the order, and he thought he would be deported for being without a visa and unlawful. His employer told him last year that he was going to apply again for a protection visa again for him, but he doesn’t know why that didn’t happen, maybe the employer forgot or got too busy. When asked by the Tribunal about the criminal charges against him, apart from the breach of the domestic violence order, the applicant said he doesn’t know what the charges are because all the documents went to the police and he didn’t get to see them, and he doesn’t know what happened in the [Town 1] court other than his lawyer telling him that everything was good and giving him the number of a lawyer who could prepare a protection visa application for him. He also doesn’t know if there other outstanding charges against him. The Tribunal noted to the applicant the charges of theft, aggravated assault and failure to answer bail referred to in the delegate’s decision record and the Immigration officer’s record of interview. He said he doesn’t know about those, and can’t remember what was discussed in the interview with the Immigration officer, which he said was last week.When asked by the Tribunal whether he would go back and live with his partner, the applicant said he’s not sure. He hasn’t been in contact with her for two weeks; he doesn’t know if she’s still living in the caravan. When put to him that living with the partner would be a breach of the domestic violence order, he said he won’t go back.When asked by the Tribunal what he thinks about his offending behaviour, the applicant said it’s not good and doesn’t want to do it again.When asked by the Tribunal if his family knows about his circumstances, the applicant said he told them the police caught him, he’s waiting to see if he gets his visa back or is deported. When asked whether his wife knows about the domestic violence order against him in relation to his partner in Australia, the applicant said he forgot to say he’s been divorced for a long time.The applicant has bought land in Vanuatu and his brother there has started building the house. He has bought the land for all his family, and the house is for himself.Last week the applicant called his employer and gave him the number for the lawyer who could help with the protection visa application. The employer called the lawyer, but the applicant doesn’t know about the application. When asked by the Tribunal the basis on which he would be applying for protection, the applicant said to keep on working. The Tribunal noted to the applicant that a protection visa is not a work visa. The applicant said he wanted to apply for protection to get out of detention then apply for a different visa, maybe a work visa.The Tribunal explained to the applicant that if he were granted a bridging visa, there would be certain conditions imposed, the first being that he must not work in Australia. The applicant said he would comply with this condition. The Tribunal queried this response given the applicant’s earlier evidence that he is in Australia to work and earn money to pay for his land and house in Vanuatu and to provide financial support to his parents and children, and that he had been working since he arrived in Australia. The applicant said that as soon as he applies for a protection visa and gets out of detention, he’ll apply for a work visa so that he can work.The applicant plans to work in Sydney and live with his brother. His brother works for [an industry 1] company there, and has told the applicant he can work there too. The applicant doesn’t know the name of the company; they [do specified work]. His brother has been in Australia for about a year on a work visa. The Tribunal explained the next condition, being that the applicant must notify Immigration at least two working days in advance of any change to his address. The applicant said he would comply with this condition. The Tribunal queried this response given that the applicant remained unlawful for 14 months. The applicant said he wants to apply for the work visa straight away.The Tribunal explained the next condition, being that the applicant must not engage in criminal behaviour. The applicant said he’ll stop all criminal behaviour, he doesn’t want to get involved.CONSIDERATION OF CLAIMS AND EVIDENCE

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 a Subclass 051 (Bridging (Protection Visa Applicant)) visa.DECISION The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.Kate ChappleMember

Ratio Decidendi

Legal Principle Established

The issue in this case is whether the Tribunal is satisfied that the applicant has met the time of application and time of decision criteria applicable to a subclass 050 bridging visa, and if a bridging visa is granted, the applicant will abide by the conditions imposed on it.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. On the evidence before it, the Tribunal is satisfied that the applicant was at the time of application an unlawful non-citizen. Accordingly, the applicant meets cl 050.211(1). On the evidence before it, the Tribunal is satisfied that the applicant was not at the time of application an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). Accordingly, the applicant meets cl 050.211(2). Therefore, the applicant meets cl 050.211.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. In this case, the applicant is seeking to meet cl 050.212(3)(b). The applicant does not claim to meet any of the other alternative criteria in cl 050.212. For the reasons below, the applicant meets cl 050.212.Substantive visa application Subclause 050.212(3)(b) is met if the Tribunal is satisfied that the applicant will apply in Australia for a substantive visa of a kind that can be granted if the applicant is in Australia within a period specified for doing so. ‘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. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without an application being made: s 5(9) of the Act. The Tribunal notes the applicant’s evidence that he wants to apply for a protection visa so he can get out of detention then apply for a visa that will allow him to continue working in Australia. A protection visa comes within the definition of ‘substantive visa’ under the Act. The Tribunal is not required to consider the applicant’s reasons for applying for a protection visa or the merits of any such application. On the evidence before it, the Tribunal is satisfied that at the time of application the applicant would have applied for a substantive visa of the kind specified. Accordingly, the applicant meets cl 050.212(3)(b).Whether the applicant continues to satisfy the time of application criteria - cl 050.221