1616895 (Migration)

[2018] AATA 4824

1616895 (Migration) [2018] AATA 4824 (14 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1825742

MEMBER:Tim Connellan

DATE:14 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 14 September 2018 at 12:49pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – abide by visa conditions – criminal history – outstanding debts and loans – credibility issues – vague evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2 cls 050.211, 050.212, 050.223 Schedule 8 conditions 8101, 8401, 8564

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act) .

2. The applicant applied for the visa on 30 August 2018. 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 (the Regulations). Relevantly to this matter, the primary criteria includes cl.050.223 quires an applicant to abide by conditions that would be imposed on a Bridging visa if granted.

3. The decision to refuse to grant the visa was made on 3 September 2018 on the basis that the delegate was not satisfied the applicant would abide by conditions that would be imposed on a bridging visa if granted. And therefore failed to meet clause 050.223.

4. The applicant appeared before the Tribunal on 11 September 2018 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issues in this case are

   ·     whether [the applicant] is eligible for the grant of a Bridging E Visa

   ·     if [the applicant] will abide by any conditions replaced on his bridging E Visa

   Is [the applicant] eligible to be granted a bridging E Visa?

7. To be eligible for the grant of a bridging E Visa, at the time of application, the applicant must satisfy clause 050.211 and clause 050.212.

8. The delegate found, and the Tribunal accepts that the applicant is an unlawful noncitizen and therefore satisfies clause 050.211.

9. The applicant told the Tribunal it was his intention, and in fact he had paid for, an application for a substantive visa, being a resident return five-year (B155) visa. The Tribunal is therefore satisfied he satisfies clause 050.212

   Whether [the applicant] will abide by conditions - cl.050.223

10. 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.

11. 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].

12. In the primary decision, the delegate decided that should have these are be granted the appropriate discretionary conditions were

    ·     8101          the holder must not engage in work in Australia

    ·     8207         the holder must not undertake any study or training whilst in Australia

    ·     8401         the holder must report at a time and place specified by the Minister

    ·     8506         the holder must notify immigration at least two working days in advance of  any change to the holder’s address, and

    ·     8564         the holder must not engage in criminal conduct

    The Hearing

13. At the hearing, [the applicant] said he accepted these conditions and would abide by them if his visa was granted. The Tribunal agrees that these would be appropriate conditions should [the applicant] be granted a Bridging E visa.

14. When the Tribunal asked [the applicant] whether he had read and understood the primary decision he responded that he had read the decision but he did not understand it at all.

15. He said he believed the decision was all over the place and a lot of the information he had provided was not included in the decision. He then provided a rambling explanation about the fact that he understood any Bridging visa granted would have a no work condition which he understood because he had come to Australia as a student and had abided by the condition which only permitted him to work 20 hours a week on his student visa.

16. When asked to detail his history in Australia, including his study history, he provided vague and contradictory evidence. For example he stated he had come to Australia and studied [a course]. When asked the name of the courses studied, he simply repeated “[the discipline] when asked specifically whether he had completed a Certificate III [he] said he had and added he had also studied [another course]. When questioned further he said he had completed a [Diploma]. He then said he did and Advanced [Diploma]. When asked how many courses he had done he said he had completed two courses. The Tribunal pointed out that he had nominated three courses.

17. He told a story about having gone [overseas] with his male partner who stole his identity including his passport which prevented him returning to Australia to a bail hearing in August 2016.

18. When he did return to Australia in 2018 he said he went to the police to discuss an outstanding IVO his partner had taken out against him in 2016.

19. [The applicant] provided rambling and vague descriptions of what had happened, stating that he had not assaulted police as claimed but he had recklessly caused injury to the police in 2016 and when he returned to Australia they put him in prison for 12 days because he did not have a valid visa. He said the assault police claim could not be justified as such a charge if proven led to a 6 month mandatory jail sentence.

20. The Tribunal referred to evidence on file which indicated that at a Magistrates Court hearing on [date] of July 2018 he had pleaded guilty, and been convicted of a number of charges and sentenced to imprisonment term of 12 days. The charges included contravention of a family violence interim intervention order, assault of a police officer, resisting a police officer, failing to answer bail and assaulting an emergency worker on duty.

21. [The applicant] insisted he had not assaulted a police officer but he was charged with recklessly causing injury to police.

22. When asked about the charge of assaulting an ambulance officer, he said they had come to his house as he was deemed to be in breach of the IVO and put him in handcuffs and were pepper spraying him and he did not know what he was doing.

23. When the Tribunal asked why the IVO had been issued, he said he had gone in and found his partner injecting drugs. He claimed he left the room, jumped out the window and went to the police. The police didn’t listen to what he had to say and declared that he was a violent person and it was on that basis they granted the family violence order. He said his partner had applied for the IVO which had been granted and he left the premises.

24. The Tribunal asked why he had been pepper sprayed, noting that was something normally only done when the police feel under threat. He responded that when he was communicating with people when he was agitated, his voice got loud and they considered that to be a threat.

25. The Tribunal told the applicant that his stories were implausible. The Tribunal stated its belief that police frequently had to deal with people in emotional and high-pressure situations where people would often raise their voices. The Tribunal does not accept that someone raising their voice would be a reason for police to use pepper spray. The Tribunal told the applicant it did not believe he had been pepper sprayed as a result of his voice being raised because he was under pressure.

26. The applicant claimed that at the end of his 12 days in criminal detention he was taken to [Detention Centre 1] on 19 July 2018 where he had remained until today.

27. The Tribunal referred to the primary decision which stated that it had been alleged [the applicant] had killed a pigeon whilst detained at [Detention Centre 2] following which incident he had been relocated to the more secure [Detention Centre 1].

28. [The applicant] confirmed he had been in both facilities in contradiction to his prior evidence.

29. The Tribunal then discussed the specific conditions that would be placed on a Bridging E visa.

30. When discussing his financial circumstances, [the applicant] told the Tribunal he had $150 in his bank account and had an $11,000 debt to [Bank 1] which comprised a $5,000 loan with the balance being credit card debt which he confirmed was accruing interest at the rate of 20% per annum.  In his BVE interview conducted on 31 September 2018 in response to a question of “Do you have any debts?”, he responded that he thought he owed [Bank 1] about $9000 in credit card debt.

31. He said shortly after arriving back in Australia he had spoken to the bank about his current circumstances and told them that due to current hardship he could only repay the debt at $20 a fortnight and they had accepted such terms. The Tribunal told [the applicant] it found it implausible that the bank would agree to an arrangement for him to pay $20 a fortnight when the interest debt was accumulating by at least twice that amount.

32. He said that should he be granted a visa he would live with a [Dr A] who lives in [Town 1], [State 1]. He said they had known one another as they went to the same church in Botswana. He said they had been out of contact but he had been able to contact him with the help of the consulate. When asked about [Dr A] he was able to provide only very scant information, claiming he was separated from his wife for work purposes initially saying that he works in [City 1], and then saying that he works in [Region 1]. When asked what he meant he said he was based in [State 1] “so he goes there and then comes back here”.  

33. When asked if he lived in [Town 1], how he would get to [City 1] if that was where he was required to report. He replied that he would catch the train. He did not know how long the journey would take or how often the train ran between [City 1] and [Town 1].

34. He said his ex-boyfriend was still trying to destroy him and had hacked into his mobile phone. He told the hearing he had three mobile phones but his ex-partner had hacked into the phone and so he was unable to access the Internet. He had also locked him out of his Seek account which denied him the opportunity to see what jobs were available. He also had no access to social media but tried to contact Google on a number of occasions to get his access reinstated.

35. When asked why his ex-partner would act like this, he said his ex-partner was trying to cover up what had happened. He said he was known in the gay community in [City 1] who had told him that his former flatmate and former partner were together and his former flatmate was wearing his clothes and they were trying to cover up that they had run away together.

36. The Tribunal told the applicant it shared the concerns of the delegate about the seriousness of the charges and convictions to which he had pleaded guilty in the Magistrates Court. The applicant responded that those events occurred in 2016 and he had not engaged in any criminal behaviour since. The Tribunal observed that he had been overseas from June 2016 till March 2018.

37. [The applicant]’s vague and inconsistent answers led the Tribunal to find that he was not a reliable witness.

38. While [the applicant] claimed that should he be granted a Bridging E visa would live with a [Dr A] in [Town 1] in regional [State 1] who would provide him with accommodation, financial and moral support, there was very little evidence to support these claims.

39. In an interview conducted at [Detention Centre 1] on 31 September 2018 the applicant told the interviewing officer that he had about $20 in the bank and had a credit card debt of $9000. He told the Tribunal he had $150 in the bank and bank debt of $11,000.

40. Given his current financial circumstances, the Tribunal is not satisfied he would be able to be sustained without work and therefore has serious doubts about his capacity to abide by condition 8101.

41. On a number of occasions through the hearing [the applicant] denied the fact he had committed a number of offences despite the evidence of orders on file. He claimed that events had not happened or were the result of actions of others. Given it appears he does not understand when he engages in criminal behaviour, the Tribunal is not satisfied he will abide by condition 8564 and not engage in criminal conduct.

42. [The applicant] told the hearing that if granted a bridging E visa he would live with a friend in [Town 1] in [Region 1], some 230 km from [City 1]. When asked how he would get to [City 1] to report if required, his responses were uncertain and not satisfactory. He claimed he would catch the train from [Town 1] to [City 1], which the Tribunal questions is possible. He had no idea of how long the journey might take or how frequently trains and/or connecting buses were available.

43. The Tribunal is not satisfied that [the applicant] will abide by condition 8401 should he be granted a bridging E visa.

44. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant does not meet cl.050.223.

45. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

    DECISION

46. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

    Tim Connellan
    Member