1729743 (Migration)

[2017] AATA 2742

1729743 (Migration) [2017] AATA 2742 (11 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729743

MEMBER:Wendy Banfield

DATE:11 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 11 December 2017 at 7:10pm

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Substantive visa application in progress – Requirement to abide by visa conditions – Adverse immigration history – Significant period of unlawful stay – Previous failure to comply with visa conditions – Criminal history  

LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cls 050.212, 050.223, Schedule 8, Conditions 8101, 8401, 8505, 8506, 8564

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

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).

3. The decision to refuse to grant the visa was made [later in] November 2017 on the basis that the applicant would not abide by conditions attached to a Bridging Visa. The applicant appeared before the Tribunal on 8 December 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

   Background

5. The applicant is a citizen of China currently aged [age] who came to Australia [in] December 2007 as the holder of a Subclass TU580 Student Guardian visa. After her visa ceased [in] July 2008, the applicant remained in Australia unlawfully until she was involved in a traffic incident [in] May 2017 in which she failed to provide her particulars. After being located and charged by police the applicant was identified as an Unlawful Non-Citizen and subsequently detained.

   The hearing

6. The applicant claimed she came to Australia with her son who was studying but after less than 12 months, he discontinued his course and left her in [Australia]. According to the applicant she stayed in Australia despite not having a visa as she was trying to locate her son but also because she had debts in her own country and was working here. The applicant is applying for a Protection visa because she says the debt in China is still there and the people the money is owned to may cause her harm. The applicant also stated she was a member of an underground Christian church in China and churches there must be registered and controlled.

7. Regarding the facts that led to her detention, the applicant claimed she had not realised she was involved in a traffic accident as it was very minor and she only found out when the police contacted her employer. She said she had been given the address of the incident and had entered it into a GPS which gave her the wrong location. The applicant conceded she had actually come to Australia to work due to her debts in China but also claimed it was because of her membership of a Christian church. In this regard, the applicant submitted a letter from [a] Church in [a] Detention Centre attesting to her attendance.

8. It was claimed the applicant has a friend who has offered to support her and that she will not work until she is issued a visa. The applicant said she had not applied for a Protection Visa earlier, or sought to regularise her immigration status because it was only after being detained that she learned she could. The applicant declared she has limited education and does not speak English.

9. Prior to the hearing the applicant provided the following documents:

   ·     Statutory declaration of [Mr A] dated [in] December 2017;

   ·     Copy of [State 1] Transport letter addressed to the applicant at a [PO Box] dated [in] July 2015;

   ·     Office of State Revenue Penalty notice addressed to the applicant at a [PO Box][State 1] dated [in] January 2017;

   ·     Letter from [a] Church: [Immigration] Detention [Centre] dated [in] December 2017;

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant will comply with the conditions attached to a Bridging Visa.

    The grounds for seeking the visa - cl.050.212

12. 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.

13. In this case, the applicant is seeking to meet cl.050.212(3). 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.

    Substantive visa application

14. Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

15. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act.

16. The Department’s decision indicates that at the time of application, a substantive visa application had been made that has not been finally determined. Accordingly, the applicant meets cl.050.212(3).

    Whether the applicant will abide by conditions - cl.050.223

17. 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.

18. 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].

19. In the circumstances of the present case, the Tribunal considers that the conditions below should be imposed:

    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.

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

    8506The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.

    8564    No criminal conduct.

20. In considering the evidence in the applicant’s case, the Tribunal has had regard to the applicant’s past immigration history, in particular her previous breaches of immigration laws, the significance of the migration laws that were breached, the wilfulness with which those laws have been breached and whether there were any mitigating circumstances justifying their breach.

21. The applicant has admitted she came to Australia to work even though she was holding a Student Guardian visa. It was claimed this course of action was taken because the applicant had a debt in China and she needed to earn money. The applicant said she remained in Australia because her son left with his girlfriend and she was looking for him. However, the applicants’ primary concern appears to have been with earning income while in Australia. After her visa expired, the applicant was aware that she was in Australia unlawfully and was not permitted to work but she remained for six years and did not seek to engage with the Department about her visa status.

22. The applicant told the Tribunal she has only applied for a Protection Visa recently because she did not know she was able to previously. The Tribunal does not accept this since she was working and living in the community and therefore in contact with other people. It was open to her to seek advice or information as to her circumstances or to communicate with the Department about her visa status.

23. On the evidence the applicant was involved in a minor traffic incident and left the scene. She said it was a light scratch and she had initially not been aware of a problem. The matter was reported by another driver and police then contacted the applicant’s employer who appears to have been the owner of the vehicle involved. At the time the applicant declared she had not been involved and told the Tribunal this was because she had been given the location and mistakenly believed she had not been in the area at the time. The Tribunal accepts the applicant may not have been fully apprised of the requirement to stop and exchange details even if a traffic incident is minor but does not find the reason for the applicant’s continued denial of her involvement to be credible. Given she did not want her unlawful status to be revealed, it is more likely the applicant denied her involvement knowingly and for that reason, rather than due to a misunderstanding. It appears the applicant would have remained in Australia unlawfully had it not been for her involvement with police.

24. The Tribunal has been provided with a statutory declaration by a friend of the applicant, [Mr A] offering to provide the applicant with accommodation and food to support her financially without working. [Mr A] has also offered to provide security in the amount of $30,000 as an assurance should the applicant be released from detention. Apart from [Mr A]’s statutory declaration, the Tribunal has no independent evidence the witness has the ability to provide such an amount as security. The Tribunal was also concerned that the applicant expects to be able to work if she is granted a Bridging Visa as she stated that she will not work until then. Since the applicant’s reason for coming to Australia, on her own evidence was to work, the Tribunal is not satisfied she will refrain from seeking to work and earn an income if a Bridging visa were granted.

25. Although the applicant promised to abide by visa conditions if released, based on her failure to make contact in the past wilfully and for no valid reason, it is likely the applicant will not maintain contact in future, especially if her application for protection is not successful. Therefore, the Tribunal is not satisfied the applicant will comply with conditions attached to a Bridging visa. The Tribunal is not satisfied that any amount of security will act as an incentive for the applicant to abide by visa conditions if one were granted.

26. The Tribunal is also concerned about the applicant’s initial denial of her involvement in a traffic incident for which she has been charged and released on bail. The applicant’s explanation, that it was a minor incident and that at first she had thought she was not in the area at the requisite time, is not credible. The Tribunal cannot be satisfied the applicant would abide by the condition not to be involved in criminal conduct.

27. The letters submitted from the [State 1] Office of State Revenue and [State 1] Transport were provided in order to demonstrate the applicant had actually changed her address as required and was able to be contacted. However, the Tribunal notes the address on the correspondence is a PO Box only, not a street address. Despite the applicant’s claims in this regard, the evidence of a mailing address provided to some state authorities does not outweigh the Tribunal’s findings set out above.

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

29. 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

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

    Wendy Banfield
    Member