Singh (Migration) - [2024] AATA 2477

Singh (Migration) [2024] AATA 2477 (19 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gurinder Singh
CASE NUMBER:  2403166
Home Affairs REFERENCE(S):               BCC2024/1161769
MEMBER:Amanda Mendes Da Costa
DATE:19 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 19 March 2024 at 2.49pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 – applicant has been convicted of significant domestic violence crimes – had made an application for Ministerial intervention – has limited financial resources – not satisfied that the applicant will comply with Condition 8101 – substance abuse – 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 73, 351
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.223, 050.613, Schedule 8
CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
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 18 February 2024. 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 050.212 which provides 17 separate criteria, each of which provides a ground for the grant of a subclass 050 visa. The primary criteria for the grant of a subclass 051 visa include cl 051.211 which provides five separate criteria, each of which provides a ground for the grant of the subclass 051 visa.
The decision to refuse to grant the visa was made on 21 February 2024 on the basis that the delegate was not satisfied that the applicant met any of the criteria in cl 050.212 or cl 050.211 for the grant of a subclass 050 or subclass 051 visa, respectively.
Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 15 March 2024 to give evidence and present arguments.
The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not conducted by video. The Tribunal was satisfied that the applicant, representative and the Tribunal could satisfactorily see, hear, and…

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 Singh (Migration)

Details

AGLC: Singh (Migration) [2024] AATA 2477
Case: [2024] AATA 2477
Decision Date: 19 March 2024

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa, subclass 050, made by Mr Gurwinder Singh. The applicant sought review of the delegate's decision to refuse his visa application. The Tribunal was required to determine whether the applicant was eligible for the visa and, if so, what conditions should be attached.

The legal issues before the Tribunal were whether the applicant met the eligibility criteria for a Bridging E visa and, if eligible, what conditions should be imposed on the visa. The applicant's immigration history revealed a complex series of visa applications and cancellations, including a previous refusal of an Employer Nomination Scheme visa and the cancellation of a Bridging A visa due to criminal charges. Crucially, the applicant had a significant criminal history involving domestic violence, including an assault on his former spouse in the presence of their children, which resulted in serious injuries. He had also been involved in further incidents of violence while in immigration detention.

The Tribunal considered the delegate's reasons for refusal, which centred on concerns about the applicant's compliance with visa conditions, particularly Condition 8101 (work restrictions). These concerns were based on the seriousness of his offending, past incidents of violence, and substantial debts that might incentivise him to breach visa conditions. The Tribunal affirmed the delegate's decision, finding that it was not satisfied the applicant would comply with visa conditions. This conclusion was informed by the applicant's criminal history, including domestic violence offences and subsequent violent conduct, and the potential for financial pressures to lead to non-compliance. The Tribunal noted that while the applicant met the basic eligibility criteria for the Bridging E visa, including having lodged a request for ministerial intervention, the overriding concern was his propensity for non-compliance with visa conditions.

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 issues in this case to be decided by the Tribunal are:·Whether the applicant is eligible to be granted a Bridging E visa.·If the applicant is eligible to be granted a Bridging E visa, what conditions should be attached to the visa.Applicant’s Immigration History On 25 May 2009, the applicant was granted a Student (subclass TU 572) visa, arriving in Australia on that visa on 30 June 2009. The applicant commenced studies for a Diploma in Business Management and a Certificate III in Automotive Mechanical Technology. On 15 August 2011 and 5 December 2012, the applicant was granted further subclass TU 572 visas to continue his studies onshore. On 12 June 2013, the applicant was granted a further subclass TU 572 visa to complete his studies in Certificate IV in Automotive Mechanical Overhauling. On 28 May 2014, the applicant was granted a Temporary Work (subclass UC 457 visa) on the basis that he was to be employed as a Motor Mechanic by Purely Prestige Automotive (the nominator). The applicant’s spouse and two children were also granted dependent visas. On 28 May 2018, the applicant applied for an Employer Nomination Scheme (subclass ENS 185) visa and was granted an associated Bridging A (subclass 010) visa. On 26 November 2018, the applicant’s subclass 186 visa application was refused because the nominator’s nomination application for a position for the applicant was refused on 27 September 2017. On 18 June 2020, the applicant’s associated Bridging A Visa was cancelled by a delegate of the Minister under s 116(e)(ii) of the Act due to his criminal charges and the delegate’s concern that the applicant’s continued presence in Australia may pose a risk to his wife and children. On 9 July 2020, the Tribunal (differently constituted) affirmed the delegate’s decision to refuse his subclass 186 visa application. On 28 February 2023, the applicant was re-notified of his Bridging A visa cancellation because his previous notification was found to be defective following the decision of the Full Court of the Australian Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46. On 11 May 2023, the applicant lodged a request for the Minister to intervene in his case under s 351 of the Act. This application is yet to be determined. On 18 February 2024, the applicant lodged the current application for a Bridging E (subclass 050) visa which was refused by the delegate on 20 February 2024. Applicant’s criminal history On 11 April 2020 Victoria Police informed the Department that the applicant had been involved in a family violence incident between himself and his former spouse. Police officers alleged that the applicant was involved in an assault on his wife who sustained multiple injuries including a fractured eye socket and cheek bone. This assault was committed in the presence of the couple’s two children.

Decision

Reasons for decision

The applicant was released from prison on 27 July 2022 when he was detained under s 189 of the Act and transferred to the Melbourne Immigration Detention Centre, where he is currently being held.Reasons for the delegate’s decision The delegate of the Minister in their decision to refuse the applicant a Bridging E visa found that they were not satisfied that the applicant would comply with the conditions imposed on the visa. This was based on the following:·The seriousness of the applicant criminal offending.·The fact that the offences committed by the applicant in April 2020 were not the only incidents of family violence on his part.·The applicant had been involved in two incidents of violence whilst in Immigration detention.·The substantial amount of the debt owed by the applicant to the Commonwealth and ANZ Banks which was likely to be an incentive to him working in breach of condition 8101 if the Bridging E visa was granted.·Mr Gurwinder Singhs responsibility for financially supporting his wife, children and mother-in-law means that the financial support of the applicant is likely to be an unsustainable burden for Mr Gurwinder Singh if the applicant is living with him and his family. 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. The Tribunal is satisfied that at the time of application:·The applicant was an unlawful non-citizen and therefore meets cl 050.211(1).·The applicant was not an eligible non-citizen of the kind set out in r 2.20(7), (8), (9), (10), (11) or (17) and therefore meets cl 050.211(2). Therefore, the applicant meets cl 050.211. 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(6) of Schedule 2 to the Regulations. 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.Ministerial intervention Subclause 050.212(6) is met if the applicant is the subject of a decision that relates to a visa application made in Australia, or a visa cancellation and has made a request to the Minister to substitute a more favourable decision under ss 345, 351 or 417 of the Act. The decision in question must be a decision for which the Minister has the power to substitute a decision under ss 345, 351 or 417, and there must not have previously been such a request, or a request for a determination under s 48B of the Act. The Tribunal notes that on 11 May 2023 the applicant lodged a request for the Minister to intervene in his case under s351 of the Act. Accordingly, the applicant meets cl 050.212(6). _Whether the applicant continues to satisfy the time of application criteria - cl 050.221

Ratio Decidendi

Legal Principle Established

The issues in this case to be decided by the Tribunal are:·Whether the applicant is eligible to be granted a Bridging E visa.·If the applicant is eligible to be granted a Bridging E visa, what conditions should be attached to the visa.Applicant’s Immigration History On 25 May 2009, the applicant was granted a Student (subclass TU 572) visa, arriving in Australia on that visa on 30 June 2009. The applicant commenced studies for a Diploma in Business Management and a Certificate III in Automotive Mechanical Technology. On 15 August 2011 and 5 December 2012, the applicant was granted further subclass TU 572 visas to continue his studies onshore. On 12 June 2013, the applicant was granted a further subclass TU 572 visa to complete his studies in Certificate IV in Automotive Mechanical Overhauling. On 28 May 2014, the applicant was granted a Temporary Work (subclass UC 457 visa) on the basis that he was to be employed as a Motor Mechanic by Purely Prestige Automotive (the nominator). The applicant’s spouse and two children were also granted dependent visas. On 28 May 2018, the applicant applied for an Employer Nomination Scheme (subclass ENS 185) visa and was granted an associated Bridging A (subclass 010) visa. On 26 November 2018, the applicant’s subclass 186 visa application was refused because the nominator’s nomination application for a position for the applicant was refused on 27 September 2017. On 18 June 2020, the applicant’s associated Bridging A Visa was cancelled by a delegate of the Minister under s 116(e)(ii) of the Act due to his criminal charges and the delegate’s concern that the applicant’s continued presence in Australia may pose a risk to his wife and children. On 9 July 2020, the Tribunal (differently constituted) affirmed the delegate’s decision to refuse his subclass 186 visa application. On 28 February 2023, the applicant was re-notified of his Bridging A visa cancellation because his previous notification was found to be defective following the decision of the Full Court of the Australian Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46. On 11 May 2023, the applicant lodged a request for the Minister to intervene in his case under s 351 of the Act. This application is yet to be determined. On 18 February 2024, the applicant lodged the current application for a Bridging E (subclass 050) visa which was refused by the delegate on 20 February 2024. Applicant’s criminal history On 11 April 2020 Victoria Police informed the Department that the applicant had been involved in a family violence incident between himself and his former spouse. Police officers alleged that the applicant was involved in an assault on his wife who sustained multiple injuries including a fractured eye socket and cheek bone. This assault was committed in the presence of the couple’s two children. The police further alleged that during this incident the applicant made threats to kill his wife and used an electrical extension cord with exposed wires and a plastic toilet plunger to assault her. He also punched his wife multiple times. As a result of her injuries the applicant’s wife required hospital treatment.