2317630 (Migration) - [2023] AATA 3963

2317630 (Migration) [2023] AATA 3963 (9 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2317630
MEMBER:Brendan Darcy
DATE:9 November 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 09 November 2023 at 9:15am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – criminal history – an unlawful non-citizen – substance abuse – Tribunal does not accept that the applicant will not breach the ‘no work’ condition 8101– not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to him – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 46A, 73, 137, 189, 195A, 359AA, 376,
Migration Regulations 1994, r 2.25; Schedule 2, cls 050.211, 050.212, 050.223, 050.221
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 sections 378 and 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 25 October 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 cls 050.212, 050.221, 050.222 and 050.223.
The decision to refuse to grant the visa was made on 30 October 2023 on the basis that the applicant will not uphold the conditions imposed on his visa pursuant to cl 050.223.
Via video conference, the applicant appeared before the Tribunal on 6 November 2023 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background: the applicant’s immigration and criminal history
The applicant was born in the Islamic Republic of Iran (Iran) on [date] and is a citizen of Iran.
On [date] June 2013, the applicant arrived as an irregular maritime arrival and was transferred to [Immigration Detention Centre 1]. [In] June 2013 the applicant was transferred to [Immigration Detention Centre 2]; and then, [in] July 2013, the applicant was transferred to [Immigration Detention Centre 3].
On 22 July 2013 the Minister intervened under s 195A and granted the applicant a Bridging Visa E (BVE), and he was subsequently released from immigration detention [in] July 2013 as a holder of a Humanitarian Stay (Temporary) (UJ 449) visa…

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 2317630 (Migration)

Details

AGLC: 2317630 (Migration) [2023] AATA 3963
Case: [2023] AATA 3963
Decision Date: 9 November 2023

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa, Subclass 050 (Bridging (General)), brought before the Tribunal by an unlawful non-citizen with a significant criminal history and substance abuse issues. The applicant sought to remain in Australia on a bridging visa while his spouse recovered from surgery, arguing that she would then be able to support them both.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria for the grant of a Bridging E visa, specifically concerning his character and his likelihood of complying with visa conditions. This involved assessing whether the Tribunal was satisfied that the applicant would not breach the 'no work' condition (condition 8101) and would otherwise abide by any conditions imposed on a bridging visa if granted.

The Tribunal considered the applicant's extensive criminal history, including convictions for offences such as burglary, theft, and drug possession, as well as charges for committing indictable offences whilst on bail. While the Tribunal accepted the applicant's assertion that certain recent charges had been dropped, it placed significant weight on the established pattern of offending. The Tribunal was not satisfied that the applicant would adhere to the conditions of a bridging visa, particularly the prohibition on work, given his past conduct and the circumstances surrounding his previous visa refusals and periods of unlawful status. The Tribunal also noted that medical documents provided regarding the applicant's spouse's recovery period were insufficient to overcome the concerns regarding the applicant's own compliance.

Consequently, the Tribunal affirmed the decision under review, finding that the applicant had not demonstrated that he would comply with the conditions of a bridging visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

(According to the delegate’s decision record, there were further charges by Victoria Police against the applicant on 25 April 2022, which were yet to be determined by a court. The charges included: Commit Indictable Offence Whilst on Bail; and Obtain Property by Deception. At the hearing, the applicant claimed these charges were dropped in 2022. The Tribunal accepts the applicant’s account and places no weight on these charges in this decision.) Evidence provided to the Tribunal On 3 November 2023, the Tribunal received an email with a number of medical and insurance documents attached. These documents indicate that the applicant’s spouse had been recently hospitalised for [surgery] in September 2023 and that she had lodged an accident insurance claim in the same month. During the hearing, the applicant explained that the accident insurance claim would ensure the applicant’s spouse would be recently compensated for around 6 weeks’ loss of income (about AUD 800 per week) and that his wife would then have sufficiently convalesced to return to work and earn a sufficient income for both the applicant and his spouse. On 6 November 2023, the Tribunal received a number of medical documents by the health provider available at MITA. They outlined the applicant’s mental health symptoms and treatments. Adverse information during the scheduled hearing Prior to the scheduled hearing, the Tribunal provided a copy of a non-disclosure certificate to the applicant. The certificate was issued under s 376 of the Act on the basis that it contained specific documents and information pertaining to the applicant’s Departmental file. Signed by an authorised delegate within the Department on 1 November 2023, the certificate states that disclosure of the material could be contrary to the public interest as it would prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance; disclose, or enable a person to ascertain the existence or identity of, a confidential source of information; disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or would be likely to prejudice the effectiveness of those methods; endanger the life or physical safety of a person; and, where information was provided ‘in confidence’, the provider of the information has not consented to the disclosure of the information to the applicant. At the scheduled hearing on 6 November 2023, the Tribunal explained to the applicant that it was going to put information to him as required by the Act’s adverse information powers. The Tribunal explained to the applicant that it has examined the non-disclosure certificate and it appeared to be validly issued, subject to his comment. The Tribunal provided the clear particulars of the information the subject of non-disclosure, stating that there were numerous email exchanges between officials of the Department of Home Affairs and officials of other agencies about the applicant’s interview with the Department, about his time served in prison and his criminal history as relevant information to those officials in assessing whether this bridging visa application should be granted. The names and contact details of officials are largely redacted but some personal particulars could be discerned. Two particular documents outlined the applicant’s charges and convictions in some detail. The Tribunal pointed out that the applicant’s criminal history and penalties have been outlined in detail to him in the delegate’s decision record. Nonetheless, the information would be relevant to the review if relied upon in affirming the decision under review, namely, whether the applicant will uphold the conditions to be imposed on this visa. The other material in the information about email exchanges and the identities of officials that are subject to non-disclosure would not be relevant in considering whether it would be the reason, or part of the reason, for affirming the decision that is under review.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEBackground: the applicant’s immigration and criminal history The applicant was born in the Islamic Republic of Iran (Iran) on [date] and is a citizen of Iran. On [date] June 2013, the applicant arrived as an irregular maritime arrival and was transferred to [Immigration Detention Centre 1]. [In] June 2013 the applicant was transferred to [Immigration Detention Centre 2]; and then, [in] July 2013, the applicant was transferred to [Immigration Detention Centre 3]. On 22 July 2013 the Minister intervened under s 195A and granted the applicant a Bridging Visa E (BVE), and he was subsequently released from immigration detention [in] July 2013 as a holder of a Humanitarian Stay (Temporary) (UJ 449) visa which expired on 30 July 2013. (The applicant was also granted a BVE on the same day until 23 July 2014.) On 24 July 2014 the applicant became an unlawful non-citizen and remained in the community without holding a valid visa until 13 December 2016. On 18 April 2016, the Minister intervened under s 46A of the Act, and lifted the bar to allow the applicant to validly apply for a temporary protection visa (TPV) or a safe haven enterprise visa (SHEV). On 14 December 2016, the applicant was granted a further BVE on the grounds he will apply for a temporary protection visa as per cl 050.212(3)(b) of the Regulations up to and including 14 April 2017. However, the applicant did not lodge such a visa application within the validity period of this BVE. On 19 July 2017 the applicant was granted a further BVE on the grounds that he will apply for a SHEV as per cl 050.212(3)(b) of the Regulations before 2 October 2017. On 22 September 2017, the applicant lodged a SHEV application and was granted an associated BVE on 28 September 2017. [In] May 2020, the applicant was sentenced without conviction by the [named] Magistrates’ Court for the following offences and issued a 12-month Community Corrections Order that commenced on the same day:·Burglary ·Theft ·Enter Intersection Red Traffic Arrow ·Drive Whilst Disqualified ·Fail Comply Direction of Authorised Officer ·Go Equipped To Steal/Cheat ·Possess Methylamphetamine ·Failure To Stop Vehicle on Police Direction ·Dangerous Driving While Pursued by Police On 3 May 2021, the Minister’s delegate refused the applicant’s SHEV application, and this refusal decision was affirmed by the Immigration Assessment Authority (IAA) on 31 May 2021. [In] June 2021, the applicant was convicted by [named] Magistrates’ Court for the following offences and sentenced to 31 days, time served, and issued an 18-month Community Corrections Order:·Burglary ·Theft ·Dishonest Take In Retention of Stolen Goods·Commit Indictable Offence Whilst on Bail ·Go Equipped to Steal/Cheat ·Contravene Community Corrections Order On 5 July 2021, the applicant’s associated BVE ceased. The applicant subsequently became an unlawful non-citizen from 6 July 2021 until 10 January 2022.

Ratio Decidendi

Legal Principle Established

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