1801480 (Migration)

[2018] AATA 329

1801480 (Migration) [2018] AATA 329 (30 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1801480

MEMBER:Russell Matheson

DATE:30 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 30 January 2018 at 11:49am

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging(General)) – Living arrangements – Sole intention to remain to work – Credibility concerns

LEGISLATION
Migration Act 1958, ss 73, 269
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) and a decision made by an authorised officer relating to requiring a security under s.269 of the Act.

2. The applicant applied for the visa [in] January 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 include cl.050.223.

3. The decision to refuse to grant the visa and the decision relating to requiring a security was made [in] January 2018 on the basis that the applicant would not meet conditions that would be attached to his visa, and that no amount of security would act as an incentive to him to abide by his visa conditions.

4. The applicant appeared before the Tribunal on 29 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s [fiancée]. 

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 applicant would meet the conditions that would be attached to his visa, and whether an amount of security would act as an incentive to him to abide by his visa conditions. 

   Whether the applicant will abide by conditions - cl.050.223

7. 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.

8. 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].

9. 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.

10. The applicant (a citizen of Nigeria) arrived in Australia [in] January 2017 as the holder of a Student (Temporary) Vocational Education Sector (subclass TU 500) visa. This visa was valid until [January] 2018 and was subject to a number of visa conditions – including 8202 (continues studying). As explained below, the applicant ceased studying within 8 weeks of arriving in Australia). [In] June 2017, the applicant then lodged a valid application for a Protection visa (PV) and was granted an associated Bridging visa A (BVA) with nil conditions imposed.

11. [In] September 2017, a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s Student visa was issued as it appeared the applicant had breached condition 8202 - and that he had not maintained an enrolment in a registered course of study since [March] 2017. The applicant did not reply to the NOICC letter and his Student visa was cancelled [in] October 2017 pursuant to s.116(1)(b) of the Act. The applicant did not seek merits review of the decision to cancel his Student visa. Following on from the cancellation of the Student visa, the applicant’s BVA also ceased and he became an unlawful noncitizen (UNC).

12. [In] October 2017, the applicant was located by [State 1] Compliance Field Team. He was found at a named location in [Suburb 1, State 1]. He was subsequently determined to be a UNC and detained under s.189 of the Act. He was then transferred to [the] Immigration Detention [Centre].

13. [In] October 2017, the applicant had lodged two applications for BVE’s. However, both applications were subsequently withdrawn. [In] October 2017, the applicant lodged another application for a BVE on the basis of his ongoing application for a PV (the first PV). That BVE was refused by a Department delegate [in] October 2017; and the applicant did not seek merits review of that decision.

14. [In] December 2017, the applicant lodged a second PV application. [In] December 2017, a BVE arose due to the applicant’s PV application. The applicant’s associated BVE was refused [in] December 2017. He sought merits review of this decision with the Administration Appeals Tribunal (AAT) and [in] December 2017 and the Tribunal affirmed the decision to refuse the application for a BVE.

15. [In] January 2018 the applicants PV application was refused. The applicant has sought a merits review of the refusal of his PV application with the AAT [in] January 2018. Accordingly, this satisfies the time of application criteria, cl.050.212.

16. Regarding the present BVE [in] January the applicant lodged an application for a BVE on form 1008 on the basis of his ongoing application for a PV.

17. At the hearing, the Tribunal put to the applicant that, subject to his comments, the following information would be the reason, or part of the reason, for affirming the decision under review.

18. First, and as noted above, the applicant arrived in Australia in early January 2017 on a Student visa and he ceased his study shortly after his arrival (within 8 weeks). He failed to maintain enrolment in a registered course of study as he was required. He did not respond to the Department’s NOICC letter relating to the cancellation of his Student visa.  Neither did he seek merits review of the decision to cancel his Student visa. At hearing, the Tribunal put to the applicant that it may believe he utilised the Student visa program solely for the purposes of entering Australia.

19. When discussed at hearing, the applicant did not agree. However, based on all the findings herein, the Tribunal is satisfied the applicant will pursue any and all options to remain in Australia. While he is entitled to pursue all legal options, the Tribunal is concerned that he may not abide by the conditions that would be placed on his BE, including 8101 (no work) and or 8401 (report as directed).

20. In response the applicant said that he was going to school and doing all the necessary things and started skipping school when his brother in law threatened to send him back to Nigeria because he knows my sexual stand and knows I can’t go back. The applicant said that he could not focus on his studies and was looking for a solution. The applicant stated that he applied for a student visa to get away from what he was facing from back home in Nigeria. Based on all the evidence herein, the Tribunal is not satisfied the applicant is credible and now finds the applicant utilised the Student visa process solely to gain entry to Australia (where his sister resides).

21. The applicant, in support of his application, provided a letter of support from his [sister], payslips in her name and a copy of her Australian passport. The applicant had stated during the hearing that he had previously been threatened by his brother in law and was unable to stay at his sister’s house. The Tribunal asked the applicant to clarify his potential living arrangements due to the fact that he is in conflict with his brother in law. The applicant said that his brother in law had returned to Nigeria after having a fight with his sister and he could now reside at her house. The applicant presented no other evidence or statements to substantiate his claim. Even if the Tribunal accepts that the applicant’s sister is willing and able to provide financial support to the applicant the Tribunal is of the view this would not be a strong enough deterrent to stop the applicant from breaching the no work condition. Based on the evidence before it, the Tribunal does not accept the applicant’s sister in Australia would be able to effectively support the applicant if her own husband is seeking to harm the applicant. Also no evidence was provided to the Tribunal that the applicant’s brother in law has permanently left Australia to reside in Nigeria. After having considered the limited evidence provided by his female Australian citizen partner, The Tribunal is not satisfied that she would be able to effectively and financially support the applicant in Australia. The applicant also provided a letter of support from a [friend], pay slips and a tenancy agreement in his name. The applicant informed the Tribunal that [he] was a friend and that they were in the same church and tribe together and that he would provide a security bond if required.

22. The Tribunal asked the applicant if he had previously worked in Australia and the purpose of doing so. The applicant said that he had worked in [an] industry and he was working to pay his school fees and for his own welfare. The applicant further stated that he told the Department that he was sending money to his family in Nigeria when they visited his house in [Suburb 1] because he was under pressure and that is why he answered that way. The applicant conceded that he had said this to Department officers. The Tribunal is not satisfied that the applicant would falsely make such a statement even if he was under pressure at the time of being detained.  He was noted as saying (at an interview [in] October 2017) that his family is depending on him to work and send money. The Tribunal is therefore satisfied the applicant’s principal if not sole intention is to remain in Australia is for the purposes of work. This is a further reason that has satisfied the Tribunal the applicant would not abide by all the conditions to which his BVE would be subject. On evidence the Tribunal is of the view the applicant would not be able to hold off working and would need to work for his own welfare if he was granted a visa.

23. The Tribunal questioned the applicant if he had ever failed to inform the Department that his living arrangements had changed. The applicant said that he had moved from his sister’s residence to live with his fiancée in [Suburb 1]. The applicant said he had moved from his sister’s house because of the situation with his brother in law, further stating that he had notified the Department that he had changed address. The applicant then corrected himself and said that he had told his sister his new address and that he had no idea that he had to inform the Department that his circumstances had changed. His sister did not apparently advise the Department of his whereabouts. The applicant was located and detained by immigration officers at this address in [Suburb 1] as an unlawful noncitizen (UNC) in October 2017. Given the applicant’s presence in Australia was due to being granted a visa, the Tribunal is not satisfied the applicant’s behaviour was intended to assist in the compliance of Australian migration laws; otherwise he may have at least contacted the Department to establish what issues may have arisen.

24. Furthermore since the applicant had travelled to Australia he had made two applications for a PV and only withdrew the first application based on the advice of his lawyer (who allegedly knew the basis of the applicant’s PV claims), and in order to pursue a Partner visa application. The applicant told the Tribunal his lawyer told him that he could not be on a PV if you have a fiancée. The applicant stated that he lodged a second PV on the advice given to him by legal aid. The applicant also stated that he had also lodged several BVE’s. The Tribunal is of the view the applicant is using the PV process as a means of extending his stay in Australia.

25. That being said, and as did the delegate, the Tribunal is satisfied the visa conditions that should be imposed on the applicant for the grant of a BVE would include:

    ·8101 (no work);

    ·8401 (report as directed);

    ·8505 (reside at a specified address);

    ·8207 (no study); and

    ·8564 (must not engage in criminal conduct).

26. However, and for the reasons set out above, the Tribunal is not satisfied the applicant would abide by the conditions that would be imposed on his BVE.

27. When a security was discussed with the applicant (referred to at hearing as the payment of monies to the Department to ensure he would abide by any conditions which may be attached to his BVE), he said he would abide by all conditions. However, after considering all the evidence, the Tribunal is not satisfied that any (or perhaps any reasonable) amount of security would act as an incentive for him to abide with the BVE conditions.

28. Though not relevant to this decision, the Tribunal notes the applicant’s PV application will be expedited should he remain in detention and his migration status would be finally resolved much sooner than if he were allowed into the community.

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

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

31. Next, 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

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

    Mr R Matheson
    Member