2320314 (Migration) - [2023] AATA 4806

2320314 (Migration) [2023] AATA 4806 (21 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2320314
MEMBER:Nicole Burns
DATE:21 December 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 21 December 2023 at 2:27pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applied for in conjunction with application for protection visa – abidance by conditions – immigration and criminal history – previous overstay and return under another identity, with third identity assumed in Australia – criminal convictions and imprisonment, including offences of dishonesty and deception – release on parole and immigration detention – offers of accommodation and financial support from friends – possibility of lengthy protection visa process – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223; Schedule 8, Conditions 8101, 8506, 8401, 8564
CASES
Applicant VAAN of 2001 v MIMA [2002] FCA 197
Tennakoon v MIMIA [2001] FCA 615
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 is a national of Singapore, born in [year]. He applied for the visa on 1 December 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 was made on 11 December 2023 on the basis that the delegate was not satisfied the applicant would abide by relevant visa conditions if the visa was granted: cl 050.223.
The applicant appeared before the Tribunal on 21 December 2023 via video link to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
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 will abide by relevant visa conditions if the bridging visa is granted.
Immigration and criminal history
At the Tribunal hearing the applicant confirmed his immigration and criminal history in Australia as set out in the delegate’s decision record (a copy of which was provided to the Tribunal on review) and reflected in the Department’s records as follows:
·The applicant came to…

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 2320314 (Migration)

Details

AGLC: 2320314 (Migration) [2023] AATA 4806
Case: [2023] AATA 4806
Decision Date: 21 December 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Bridging E (Class WE) visa made by an applicant who had also applied for a protection visa. The central dispute before the Tribunal was whether the applicant would abide by the conditions of the bridging visa if it were granted, given their extensive immigration and criminal history.

The legal issue before the Tribunal was to determine whether it was satisfied, pursuant to clause 050.223 of the Migration Regulations 1994, that the applicant would abide by any conditions imposed on a Subclass 050 Bridging (General) visa. This required the Tribunal to assess the applicant's likely future conduct in light of their past actions.

The Tribunal's reasoning focused on the applicant's significant immigration and criminal history. This included entering Australia on multiple occasions using different identities, assuming the identity of an Australian citizen, travelling on an Australian passport under an alias, and convictions for serious drug offences and dishonesty offences, which resulted in lengthy prison sentences. The applicant had been released on parole and was currently in immigration detention. The Tribunal noted that when considering clause 050.223, it must examine the applicant's past immigration history, the significance and wilfulness of any breaches, any mitigating circumstances, and evidence of contrition, as per the principles in *Applicant VAAN of 2001 v MIMA* (2002) 70 ALD 289. The Tribunal concluded that the applicant's history demonstrated a pattern of deception and disregard for immigration laws and criminal statutes, leading it to be unsatisfied that the applicant would abide by visa conditions.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa. The Tribunal also noted that the applicant did not meet the eligibility 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

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 will abide by relevant visa conditions if the bridging visa is granted.Immigration and criminal history At the Tribunal hearing the applicant confirmed his immigration and criminal history in Australia as set out in the delegate’s decision record (a copy of which was provided to the Tribunal on review) and reflected in the Department’s records as follows:·The applicant came to Australia [in] August 1980 holding a Visitor (V10) visa valid until 16 September 1980. He became an unlawful non-citizen on that date and departed Australia [in] August 1981.·The applicant came to Australia [in] September 1986 holding a Visitor (V10) visa valid until 1 December 1986 in a using a different name and date of birth (DOB). ·In 1991 the applicant assumed the identity of an Australian citizen ([Mr A]) and [in] January 1992 changed his name by deed poll to [Alias]. ·In the period [April] 1992 and [March] 2002 the applicant travelled to and from Australia several times holding an Australian passport in the name of [Alias].·[In] March 2005 he was convicted of ‘Supply Commercial Quantity Prohibited Drug’ and sentenced to six years in prison with a non-parole period (NPP) of three years and nine months. ·The applicant was placed on remand in police custody and [in] October 2018 convicted of ‘obtain financial advantage by deception (2 counts), make false/misleading statement regarding Australian travel document, and obtain Australian travel document dishonestly’ and sentenced to six years and nine months in prison, with a NPP of four years. ·[In] October 2023 the applicant was released from prison (on parole) and detained in an immigration detention centre where he presently resides.·The applicant applied for a Temporary Protection visa (Subclass 785) on 1 December 2023, which is also an application for a Bridging visa: the subject of this review. At hearing the applicant confirmed he was granted parole in October this year and his sentence ends [in] July 2025. He confirmed there are no outstanding criminal matters.Whether the applicant will abide by conditions - cl 050.223 Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on it. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject. When considering cl 050.223, the Tribunal must consider which conditions, if any, should be imposed and whether it is satisfied that the applicant would abide by those conditions. In deciding the question of whether the applicant would abide by conditions imposed, the Tribunal is to consider the likely conduct of the applicant. In that context, relevant considerations may include the applicant’s past immigration history, in particular any previous breaches of immigration laws, the significance of the migration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach and whether the applicant had shown any contrition for their unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].

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.Nicole BurnsMember

Ratio Decidendi

Legal Principle Established

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