2442839 (Migration) - [2024] ARTA 497

2442839 (MIGRATION) [2024] ARTA 497 (19 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Home Affairs
Tribunal Number:  2442839
Tribunal:General Member S Kamandi
Place:Perth
Date:  19 November 2024
Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:
·cl 050. 223 of Schedule 2 to the Regulations;
The Tribunal also orders the primary decision maker
·to indicate to the applicant that conditions 8101, 8506, 8564. will be imposed if the visa is granted.

Statement made on 19 November 2024 at 8:06am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – student visa cancelled and period as unlawful non-citizen – criminal convictions – entered casino as self-excluded person, with friend’s passport and credit card – other charges and AVO – released from custody and taken into immigration detention – previous applications for bridging visas on departure grounds unsuccessful – application for protection visa in progress and current bridging visa applied for in conjunction – abidance by conditions of visa – no work, report as directed and no criminal conduct – financial support from parents – inconsistent evidence about work and repayment of gambling debts – accommodation, support and guidance from family friend lawyer – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 73, 376
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212(2), (3), 050.223, 050.613A, 050.618, Schedule 8, conditions 8101, 8506, 8564
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 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). Class WE contain 2 subclasses: subclasses 050 and 051. The criteria for this visa are set out in Part 050 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
BACKGROUND
Visa history
The applicant is a national of China who first arrived in Australia [in] July 2018 as a holder of a Student (Class TU) (Subclass 500) visa, valid until 15 March 2024. The applicant travelled to China and returned to Australia on multiple occasions, with his last arrival [in] December 2021.
On 18 October 2023, the applicant’s student visa was cancelled under s 116 of the Act and he subsequently became unlawful.
The applicant was charged and convicted of criminal offences, in November 2023 and July 2024, referred to below. On 27 July 2024, after having been granted bail and released from criminal custody, the applicant was located by the Australian Border Force (ABF) and transported…

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 2442839 (Migration)

Details

AGLC: 2442839 (Migration) [2024] ARTA 497
Case: [2024] ARTA 497
Decision Date: 19 November 2024

CaseChat Overview and Summary

In the matter of 2442839 (Migration), the applicant, a Chinese national, appealed a decision by a delegate of the Minister for Home Affairs to deny him a Bridging E (Class WE) visa under section 73 of the Migration Act 1958. The applicant's student visa was cancelled on 18 October 2023, rendering him unlawful. He was subsequently charged and convicted of criminal offences, leading to his detention in Villawood Immigration Detention Centre. Despite multiple unsuccessful applications for a Bridging E visa, the applicant continued to seek legal review, culminating in an application to the Administrative Appeals Tribunal. The Tribunal found the decision to be affirmed, but the applicant further appealed to the Administrative Review Tribunal. The primary legal issues were whether the applicant would abide by the conditions of the visa if granted and whether the delegate's decision was correct in light of the applicant's history and circumstances.

The Tribunal examined the applicant's past conduct, his current compliance, and the support from his family and a family friend lawyer. It was noted that the applicant had been compliant with visa conditions, had no work history, and had financial support from his parents. The Tribunal found inconsistencies in the applicant's evidence regarding work and repayment of gambling debts but considered his overall conduct and the support from his family friend lawyer. The Tribunal concluded that the applicant would abide by the visa conditions if granted, particularly regarding no work and no criminal conduct. The Tribunal set aside the decision and remitted the matter for reconsideration, noting that the applicant met the criteria for a Subclass 050 (Bridging (General)) visa.

The Tribunal ordered the primary decision maker to indicate the specific conditions that would be imposed if the visa was granted, including conditions 8101 (no work), 8506 (notify the Department of change of address), and 8564 (no criminal conduct). The Tribunal's decision was based on the applicant's ability and willingness to comply with these conditions, considering his past conduct, the evidence provided, and the support from his family friend lawyer.

Orders

Orders of the court

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Background

Background to the litigation

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). Class WE contain 2 subclasses: subclasses 050 and 051. The criteria for this visa are set out in Part 050 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).BACKGROUNDVisa history The applicant is a national of China who first arrived in Australia [in] July 2018 as a holder of a Student (Class TU) (Subclass 500) visa, valid until 15 March 2024. The applicant travelled to China and returned to Australia on multiple occasions, with his last arrival [in] December 2021. On 18 October 2023, the applicant’s student visa was cancelled under s 116 of the Act and he subsequently became unlawful. The applicant was charged and convicted of criminal offences, in November 2023 and July 2024, referred to below. On 27 July 2024, after having been granted bail and released from criminal custody, the applicant was located by the Australian Border Force (ABF) and transported to Villawood Immigration Detention Centre (VIDC), where he has remained. On 29 July 2024, the applicant lodged an application for a Bridging E (Class WE) visa (BVE) which was refused on 1 August 2024. The applicant applied for a review of the decision not to grant him a visa with the Administrative Appeals Tribunal (AAT), which was affirmed on 16 August 2024. On 18 September 2024, the applicant lodged a second BVE application which was deemed invalid. On 19 September 2024, the applicant made a third application for a BVE. That application was refused on 24 September 2024, and affirmed by the AAT on 2 October 2024. On 3 October 2024, the applicant made an application for a Permanent Protection (Class XA) (Subclass 866) visa (protection visa) and an associated BVE application. While his protection visa application was deemed valid, his BVE application was found to be invalid. On 27 October 2024, the applicant lodged a fifth application for a BVE which was determined to be invalid. On 4 November 2024, the applicant made a sixth BVE application which was refused on 7 November 2024. The applicant applied for a review of the delegate’s decision with the Administrative Review Tribunal (the Tribunal) on 11 November 2024. The applicant was invited to appear before the Tribunal on 15 November 2024. The applicant appeared by video from VIDC in New South Wales. He was not represented. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant and the interpreter confirmed that they understood each other and there were no issues raised regarding the communication between the applicant and the interpreter at the hearing. Where relevant, the applicant’s evidence given at the hearing is discussed below. The applicant’s witnesses, his mother who joined the hearing from China and [Mr A], an Australian lawyer and a family friend of the applicant, also provided evidence in support of the applicant’s review application. Where relevant, I have referred to their evidence in the discussion below.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the evidence before me, I am satisfied that the applicant will abide by all the conditions imposed on the BVE if granted. Therefore, the applicant meets cl 050.223.DECISION The Tribunal sets aside the decision under review and remits the matter for reconsideration in with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:·cl 050.223 of Schedule 2 to the Regulations; and The Tribunal also orders the primary decision maker to indicate to the applicant that: ·conditions 8101, 8506, 8564. will be imposed if the visa is granted.Date of hearing: 15 November 2024

Ratio Decidendi

Legal Principle Established

If the Tribunal is satisfied that the applicant will only abide by the conditions if given a financial incentive to do so, it is necessary to consider any security decision made under s 269 of the Act.[2] Conversely, if not satisfied that an applicant would abide by the conditions attached to a bridging visa even where there is a financial incentive, the occasion for the imposition of a security does not arise.[3]CONSIDERATION [2] VAAN [10].[3] VAAN [21]-[22]; Liu v Minister for Immigration and Citizenship [2008] FMCA 725 [33], [37].Conditions to be imposed In this case, like the delegate I also consider that cl 050.613A applies because the applicant has applied for a Protection visa, and he is not in a class of persons specified by the Minister for the purposes of cl 050.613A(1)(b). In these circumstances, condition 8101 (that the visa holder must not engage in work in Australia) is mandatory: cl 050.613A. Clause 050.613A also prescribes that certain conditions may be imposed, including the conditions referred to in the delegate’s decision (conditions 8207, 8401 and 8505). In addition, cl.050.618 provides that, in addition to any other condition imposed by another provision of the relevant Division, condition 8564 (not engage in criminal conduct) may be imposed. As referred to above, while the delegate indicated that conditions 8101, 8207, 8401, 8506, and 8564 were to be imposed if the applicant was granted a BVE, the delegate was not satisfied that the applicant will abide with conditions 8101 (no work) and 8564 (must not engage in criminal conduct). The applicant has not made any submissions regarding the conditions considered by the delegate. The applicant’s evidence and submission relate to his ability and willingness to comply with conditions to be imposed, if granted a BVE. Given my findings below, I consider that if the BVE is granted, the following conditions are to be imposed:·8101 – The holder must not engage in work in Australia. This is a mandatory condition. ·8506 – The holder must notify the Department of change of address. This is in view of the applicant’s past disengagement with the Department regarding his visa status and unlawful status.·8564 – The holder must not engage in criminal conduct. This is in view of the applicant’s past and pending criminal offences. Whether the applicant will abide with conditions In considering this issue, I have considered the applicant’s past conduct, his evidence in his BVE application and at the hearing, his mother’s and [Mr A]’s evidence at the hearing, and documentary evidence in support of his review application. The applicant is a [Age]-year-old Chinese national who came to Australia on a student visa in 2018. At the hearing, the applicant stated that his student visa was cancelled on 18 October 2023. He claimed that while he was aware that his student visa would expire in March 2024, he was not aware that it was cancelled in October 2023 and that he only became aware of this fact when he was detained on 29 July 2024. During the hearing, the applicant’s evidence indicated that the reason he was not aware of the cancellation of his student visa was because he had failed to inform the university and the Department of the change in his contact details and therefore did not receive the notice of cancellation of his course of study or student visa.