1729688 (Migration)

[2017] AATA 2731

1729688 (Migration) [2017] AATA 2731 (4 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729688

MEMBER:Alan McMurran

DATE:4 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 04 December 2017 at 3:29pm

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 850 (Bridging (General)) – Did not leave as required – Encouraged to hide from immigration authorities – Willingness to ignore immigration laws – No independent financial means of support – Willing to hide in the community

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 050.223

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 501K 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 [in] November 2017. 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 include cl.050.223

3. The decision to refuse to grant the visa was made [in] November 2017 on the basis that the delegate was not satisfied that if granted, the applicant would abide by conditions 8101, 8401, 8506, 8303 and 8564.

4. The applicant appeared before the Tribunal on 4 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother [and] the applicant’s [wife].  The Tribunal hearing was conducted with the assistance of an interpreter in the Tonga and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the tribunal is satisfied that, if a bridging Visa is granted to the applicant, the applicant would abide by the conditions the Tribunal considers appropriate to impose on that visa in accordance with cl. 050. 223.

   Background

7. The applicant is a citizen of the Kingdom of Tonga (“Tonga”) and is currently [age] years old. The applicant is married to an Australian permanent resident.

8. The applicant is currently in Immigration detention at [a] Detention Centre in [City 1] having been apprehended by police [in] October 2017.

9. The applicant arrived in Australia on a Special Program Visa subclass TE 416, [in] March 2013. The applicant was entitled to work in regional Australia in accordance with the special program and was located at a farm in [State 1], approximately 2 hours from [a city],         where he was engaged fruit picking. The applicant could not remember the location or the name of the farm or employer where he worked. The applicant’s special-purpose Visa expired [in] October 2013.

10. The evidence before the Tribunal which is confirmed by the applicant at the hearing is that the applicant had a dispute with the proprietor about pay, and left that employment on or about [in] April 2013. The applicant said in evidence that he was working with about 50 other Tongans picking [fruit], and that he reported directly to a team [leader]. The applicant said that his employment had been arranged by [a named person], who was an organiser who travelled between Tonga and Australia. The applicant said that he and a number of other employees complained that they had been told they would receive approximately $1000 per week, but had been paid only $200. The applicant said after paying for food and accommodation, there was “nothing left”. The applicant said that he complained about the wages and himself and the other Tongans discussed the issue before he decided to leave with two others. The applicant said that he knew it was a condition of his Visa that he remain at the employment but he decided to leave anyway.

11. The applicant did not return to [State 1], and moved to [City 1]. He said that he had contacted his brother who was a permanent resident living in [City 1] and was assisted by members of the Tongan community to purchase an air ticket to [City 1]. The applicant said that when he moved to [City 1] he thought his Visa was still current and he commenced living with his brother [until] he met his wife shortly afterwards. The applicant married [his wife] later in 2013 and then moved into live with her at [another suburb].

12. The applicant became unlawful on expiration of his Visa [in] October 2013. Between April 2013 and July 2015, while living in [City 1] and for a period in excess of 2 years, the applicant supported himself by working [part-time], and also with the financial support of his brother and wife. The applicant said that the work was arranged for him by other members of the Tongan community and would vary from 2 or 3 days per week. The applicant was paid cash of approximately $100 per day. The applicant said he gave the money to his wife who would use it towards living expenses and also for sending to Tonga to the applicant’s mother.     

13. The applicant said at the hearing he was aware his Visa required him to depart Australia on or shortly after [a date in] October 2013. The applicant said he was aware that while hiding in the community in [City 1], he was in breach of Australia’s Migration laws.

14. The applicant was asked why he did not return to the Kingdom of Tonga. The applicant said that he was encouraged by his brother to remain in [City 1] and once married, he did not want to return. The applicant said that he did not seek advice other than from his family about his Visa status and that he made friends amongst the Tongan community. He said this was his first time overseas in travelling to Australia and that because he was having problems in returning to Tonga, it would be better for him to remain in [City 1]. The applicant discussed the matter with his wife and family and his wife told him he should go to Immigration and report himself. The applicant said that he decided to go to Immigration and seek advice about staying, and his wife took him to report his presence as she knew that he was unlawful.

15. When the applicant presented himself to Immigration authorities [in] July 2015, he was granted a bridging Visa requiring him to depart Australia by [a date in] July 2015. The applicant did not depart as required and [in] July 2015 was granted a further bridging Visa requiring him to depart on or before [a date in] July 2015. The grant of the Bridging Visa was subject to conditions that the applicant did not work (8101), would notify of any new address (8506), would leave by the specified departure date (8512) and would not study (8207). The applicant said that he was aware of these conditions.

16. The applicant did not leave as required by the conditions of the Bridging Visa and for the second time, hid in the community. From [July] 2015, the applicant said he was living with his wife for most of that period up until his detention [in] October 2017. The applicant was asked why he did not leave when he was granted a Bridging Visa in July 2015 and he responded that he didn’t have the money for an air ticket. The applicant said that his wife was working at the time and has been continuously in their relationship, working in [an occupation]. The applicant also said that his wife had taken his passport.

17. The applicant was asked questions about the detention interview with [an] authorised interviewer [in] October 2017. The applicant was reminded that on that occasion the interviewer had questioned him about what happened with Immigration in July 2015. He was reminded that in the interview he had said to his wife that he “should go back to Tonga and then come back maybe 3, 6 or 12 months”. The applicant appeared not to remember the discussion with the interviewer in that interview, although the report at page 1 of the Compliance Client Interview was read to him verbatim by the interpreter. The applicant was asked whether he had said he wanted to return to Tonga and the Tribunal understood by his response that he did not remember saying so.

18. The applicant was asked why he would not consider returning to Tonga in order to make any further or other lawful application that might be open to him. He said that he did not want to return to Tonga and wanted to remain living with his wife.

19. The applicant was asked questions about why he was working in breach of migration law and his previous Visa. The applicant said he knew he was not allowed to work but did so in order to help support himself and his wife and to be able to send money to his mother in Tonga.

    Relationships

20. The applicant has family in Tonga which includes his ex-wife, and [children]. The applicant said that he had a child in [year] shortly before coming to Australia to a de facto partner. He had divorced his first wife in or about 2008 in Tonga.

21. The applicant said that after he married in [City 1], he met another woman sometime in 2016 with whom he had an affair. The applicant said he lived briefly with this person from about November 2016 until early 2017. The applicant said that he had arguments with his wife and in early 2016 had told her that he wanted a divorce. He stayed with her however until about July 2016 when he left to stay with other members of the Tongan community in a Tongan “men’s shed” which he had been frequenting.

22. The applicant said that he went to [another Australian city] in early 2017 for about a month and stayed with the Tongan community. He returned to [City 1] in about February and resumed living with his wife. He continued to see his “girlfriend” who’s name was [name] up until about September 2017 when he had an altercation with her and she commenced [court] proceedings. Those proceedings were filed [at] the police station and the applicant directed to attend [a] local Court [in] October 2017. Those proceedings were adjourned to [a date in] November 2017 and the applicant said he thought the proceedings were likely to be resolved in December. As at the hearing, the outcome of those proceedings was unknown and the Tribunal was unable to determine from the applicant whether the proceedings were likely to be resolved amicably or by withdrawal, or by the court. The applicant said that regardless, he had resumed cohabitation with his wife and that the marriage was continuing.

    [Applicant’s brother]

23. The applicant’s elder brother is also a permanent resident of Australia and resides in [City 1]. The applicant said at hearing that he receives some financial support and assistance from his brother. [The applicant’s brother] gave evidence that he was living and working in [City 1] and had recently been made redundant. His principal occupation was as [an occupation]. He said that he was married with one child. He said that the applicant had come to live with him from [State 1], and that he had encouraged him to do so. [Applicant’s brother] said that he knew it was in breach of the migration laws but that he wanted his brother to come to [City 1].

24. He said that his brother lived with him from about April 2013 until he married later in 2013 (August). At that time, the applicant moved out to live with his wife at [a suburb]. [Applicant’s brother] said that to his knowledge the applicant had remained with his wife until his detention in October 2017. He said that he had discussed his Visa status with the applicant and the applicant’s wife and that he thought the applicant’s wife had sent him to see a lawyer.

25. The witness was asked why the applicant had left [State 1] and he said that they talked about the “moneys not good”. The witness did not give any details about the applicant’s dispute with his employer but agreed that he had helped him to come to [City 1] and hide him from Immigration authorities. He said that he had also encouraged him to make a protection visa application. He was asked why the applicant needs protection and he responded that “I don’t think he should return to Tonga”. He was asked whether he would continue to hide the applicant if it became necessary to do so and the witness said he would. He said if the applicant was required to return to Tonga by decision of the Tribunal or otherwise, he would continue to hide him “if necessary”.

26. The witness acknowledged this was in breach of migration law and was asked how the Tribunal could be confident in such circumstances that the witness, as the applicant’s brother, might ensure that the applicant did not again break migration laws and would comply with those laws. The witness responded that he would “need more time” to raise money to put towards the cost of making whatever applications were necessary to keep his brother in Australia.

27. The witness said he was also concerned about his brother’s medical condition and that he needs to find a way to help him, which would be while he was free in the community and not detained. The witness was asked about his brother’s medical condition and he responded that there was a family history of [medical] problems. The condition he thought had not been diagnosed and he said that his brother was receiving treatment in [a] detention centre. He did not know what had caused him to seek treatment or need treatment whilst in detention.

28. The Tribunal asked how frequently the applicant had spent time with him and he indicated up to 3 times on a daily basis. He said he saw the applicant and his wife regularly and that the relationship between the applicant and his wife was “pretty good at the moment”. [The applicant’s brother] said that he knew about the applicant’s affair and about the criminal proceedings brought against him, although he did not know the details.

    [Applicant’s wife]

29. The applicant’s wife gave evidence that the applicant had been living with her [in a suburb] since their marriage in about August 2013. She said that she first became aware of his medical condition approximately 2 months before his detention. She said that he had not sought medical treatment in the community. She was aware that he was now receiving treatment at [location] and from [the State] Health.

30. [The applicant’s wife] was asked questions about her husband reporting himself in July 2015 and why she had not assisted him to return to Tonga. She said they did not have money for an air ticket, but in any event did not want him to return to Tonga. She agreed that he had been working part-time [and] giving his money to her, some of which she would send to the applicant’s mother in Tonga. The Tribunal asked if he left her again, whether she would report the matter. [The applicant’s wife] responded that if he “ran away from me” she would report it.

31. [The applicant’s wife’s] main concern was about her husband’s health and how he might be treated for his [medical] problem. She said she would support him and would be able to do so through her income, as she currently had 2 jobs. She said she knew about his affair but did not understand that he had ever threatened to divorce her or leave her permanently.

32. She conceded that she had been concealing the applicant from the time he commenced living with her in or about August 2013 until July 2015 when she took him to Immigration authorities. She said that she did not seek legal advice, but that he did so voluntarily. She said that she knew when she married him that he was subject to a Visa condition “no further stay”. She was unable however to give any details about what she did as a consequence, other than encouraging him to voluntarily present himself in July 2015.

33. [The applicant’s wife] said that she would be able to continue to support herself and the applicant if he were released from detention to live with her. She did not want him to return to Tonga. Her preference was for him to stay here and receive treatment for his [medical] condition.

    [Court] Proceedings 

34. As indicated above, there is no indication as to the final outcome of those proceedings brought by the applicant’s girlfriend in September 2017. There was no evidence those proceedings had been withdrawn, as indicated by the applicant’s brother and himself.

35. In a submission from the applicant made 28 November 2017 to the Tribunal, the applicant concedes that he struck the complainant (his girlfriend) and that he acknowledged it was “wrong to hit back”. He said in evidence however that his girlfriend had threatened him and that she was very “abusive”. The applicant did not say that he would not be seeing the girlfriend anymore or continuing the relationship. Clearly he is unable to do so while the court order remains in place.

    Bridging visa Application

36. The Tribunal’s file shows that the applicant was detained [in] October 2017 and placed in detention [in] October 2017. [In] November 2017 while in detention, the applicant made an application for a substantive visa (Protection Visa) which then triggered an application for a Bridging Visa. The bridging Visa application was refused by the delegate [in] November 2017, for reasons referred to below.

37. On 27 November 2017, the applicant made this application for review of the refusal by the delegate of the Bridging Visa application. The application is subject to the Regulations in respect of visa subclass 050. Subclause 050.212 requires an applicant to have made a valid application for a substantive visa which can be granted if the applicant is in Australia and which application has not been finally determined.

38. The Tribunal finds that the applicant has made application for a substantive Visa (Protection Visa). The applicant was asked about this application at the hearing and said that he required protection in Tonga as people there had made threats against him. No particulars or details were provided of those threats or the applicant’s fear, and the Tribunal notes that is the subject of a current substantive Visa application.

39. The applicant stated that he intends to make application for a partner visa, and to resume cohabitation with his wife in [City 1]. This is supported by [the applicant’s wife] and in evidence the applicant said that he will wait until the outcome of his protection Visa as he did not have sufficient funds at present to prosecute a further substantive partnership Visa. This was confirmed by the applicant’s brother who also said he thought it would cost around $8000 for the partnership Visa application and he did not have those funds available to support the applicant. He said he would need time to do so in order to raise funds.

40. At the hearing, the Tribunal had regard to the information available on the Department’s file and the Tribunal’s file, including the applicant’s written submission (typed) dated 28 November 2017 and the further hand written submissions of the applicant’s brother dated 21 November 2017 and the applicant’s wife dated 20 November 2017.

    Relevant Law

41. The Bridging Visa (BVE) is a Visa for unlawful noncitizens seeking permission to remain temporally in Australia. It contains 2 subclasses, including Subclass 050 (Bridging (General)). The criteria for a Subclass 050 Visa as set out in Part 050 of Schedule 2 to the Regulations. All applicants must satisfy the primary criteria. Primary criteria include that at the time of application for the visa, the applicant is an unlawful non-citizen.

42. 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.

1. 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:

   a.the applicant’s past immigration history, in particular any previous breaches of immigration laws,

   b.the significance of the migration laws that were breached,

   c.the wilfulness with which those laws had been breached,

   d.whether there were any mitigating circumstances justifying their breach and

   e.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].]

2. If the Tribunal is satisfied that the applicant will abide by the conditions if security of a particular amount is required, the applicant meets cl.050.223. However, if not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl.050.223 is not met.

   Whether the applicant will abide by conditions – cl 050.223

3. In this case, cl.050.223 prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following condition(s) should be imposed in the circumstances of this case:

   8101- The holder must not engage in work in Australia.

   8401- The holder must report:

   (a)at a time or times; and

   (b)at a place;

   specified by the Minister for the purpose.

   8505- The holder must continue to live at the address specified by the holder before the grant of the visa.

   8564- The holder must not engage in criminal conduct.

4. The Tribunal has paid careful regard to the oral evidence at hearing on the questions and answers put to the applicant and the 2 witnesses. The Tribunal has also had regard to the written materials including the detention notes as [of] November 2017, the [court] order made [in] September 2017, the compliance client interview and assessment made [in] October 2017, [and] the migration history is revealed on the Department’s file and the Tribunal’s file.

5. The Tribunal finds that the applicant first became unlawful [in] October 2013 when his initial special purpose Visa expired. He remained unlawful until [July[ 2015 when he presented himself to the migration authorities and was granted a bridging Visa E which expired [in] July 2015. That Visa was extended to [a date in] July 2015, and required the applicant to present with a ticket for departure. The applicant failed to do so.

6. The Tribunal notes the findings of the Department that the applicant has overstayed his Visa and become an unlawful noncitizen on 2 occasions, and has concealed himself in the community for a period in excess of 2 years. The Tribunal finds that the applicant was aware of his unlawful status, but made no attempt after July 2015 to rectify the situation, and was apprehended by police for driving an unregistered vehicle [in] October 2017. The applicant has no independent financial means of support and is dependent upon his wife and from his own income obtained from casual [employment].

7. The Tribunal finds that neither the applicant, his wife nor his brother have sufficient independent financial means to be able to support the applicant and continue to send money to the applicant’s mother in Tonga. No financial information was provided to the Tribunal as to the financial circumstances of the family other than the oral evidence provided at hearing. Reference was made by the witnesses to the Tongan community raising funds to support the applicant, but no evidence was provided how that would be achieved, when or by whom.

8. Reference was made to the applicant’s health and his physical condition, but no medical evidence was produced in support other than confirmation that the applicant has been treated whilst in detention and attended the [local] health service on or about [a date in] November 2017. A discharge referral was provided in the Department’s papers from [local] health service which indicates that the applicant has been reviewed by a [specialist] who has prescribed treatment. The Tribunal finds that the applicant is receiving appropriate medical supervision, a factor which was not available to him or availed of by him when living in the community. The medical notes on the Department’s file confirm a diagnosis of [a medical condition], being treated with prescribed medications to which the applicant has responded positively.

9. The Tribunal is obliged to give consideration to the following factors in reviewing this application and prior to determining whether the decision upon review should be affirmed or remitted.[1]

   Immigration History - Breaches

   [1] Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16]

10. The Tribunal has pointed out above the history of the applicant’s unlawful status acknowledged by the applicant and which commenced [in] October 2013 and then again [in] July 2015. The applicant has conceded in evidence he was aware of the conditions attached to his Visa and that he was not permitted to live and work in Australia other than in accordance with the initial special purpose Visa.

    Significance of Breaches

11. The Tribunal finds that the breaches by the applicant are serious. It was not a case of inadvertence or ignorance which led the applicant to hide in the community. The applicant was encouraged to do so by both family members and the Tongan community at large, according to the applicant and his brother.

    Wilfulness

12. The applicant has readily conceded that he deliberately breached the migration laws. This has been confirmed by his brother in evidence at the hearing, where his brother said that if it came to a choice between the applicant returning to Tonga or remaining in Australia, he would continue to assist the applicant to conceal himself in the community and not comply with migration law in order for him to be able to remain in Australia. The applicant stated frankly that he did not wish to return to Tonga and his brother equally frankly stated that he would help him not to have to do so.

    Mitigating Circumstances Justifying Breach

13. The Tribunal finds there are no mitigating circumstances justifying the wilful breach of Australia’s migration laws. The applicant has made a substantive application for a Protection Visa, which will be dealt with in due course and which is not before this particular Tribunal, but no reason has been put forward why the applicant could not return to Tonga were he compelled to do so, other than for reason that the applicant does not wish to return.

    Contrition

14. The applicant has said in his written submission that he would like to apologise for breaching previous visa conditions. The Tribunal notes the expression of contrition which it accepts as genuine. He points to the fact that he has twice been granted a Bridging Visa previously, noting that he says he did not really understand the conditions at the time which were imposed on those visas. The Tribunal finds this hardly credible given that the simple obligation of the applicant was to acquire a return ticket to Tonga. The other mandatory condition not to work was known to the applicant and ignored by him when the opportunity arose for working as an occasional [worker] for members of the Tongan community. The Tribunal finds that the applicant was aware of the conditions attached to his visas and chose to ignore them. It may be that he was encouraged to do so by family members and the Tongan community, but that is not an explanation for not “understanding” those conditions.

    Future Compliance and Security

15. On the evidence before it, the Tribunal is not satisfied that the applicant would abide by conditions imposed on the visa if granted, particularly the “no work” condition, when the financial circumstances of the applicant and his wife provide a serious incentive for the applicant to provide some income, which he also requires to send to his mother in Tonga.

16. The Tribunal is not satisfied that based on the past behaviour of the applicant and his willingness to ignore Australia’s immigration laws and remain in Australia despite having no valid reason to do so, that any amount of security will act as an incentive for him to abide by the above conditions. It is likely in this Tribunal’s view that even were a bond to be imposed to ensure compliance, the applicant’s visa history indicates the applicant would not be willing to abide by the conditions of his visa, even if it led to a bond being forfeited.

17. It is likely in this Tribunal’s view that the temptation to work would be too great for the applicant when the need arose and similarly if necessary, the applicant would be quite willing to hide in the community and conceal his address from the Department to enable him to remain in Australia, should he choose to do so and as he has frankly admitted.

18. The applicant’s brother conceded that he had just been made redundant and the family’s respective financial circumstances were such that “we would need some time” to raise funds even for prosecution of the applicant’s substantive visa. The Tribunal finds this is not a case where the imposition of a financial security would assist in ensuring the applicant’s compliance with the visa conditions referred to above.

19. 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.

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

21. 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

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

    Alan McMurran
    Member