1804590 (Migration)

[2018] AATA 663

1804590 (Migration) [2018] AATA 663 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1804590

MEMBER:Nicole Burns

DATE:1 March 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 01 March 2018 at 3:48pm

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Unlawful status – Financial support from friends – Debt in home country – Failure to regularise immigration status – Credibility concerns – Poor immigration history

LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2 cl 050.223

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
Applicant VAAN of 2001 v MIMA [2002] FCA 197
MIAC v Khandakar [2011] FCAFC 22
Tennakoon v MIMIA [2001] FCA 615

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] February 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 was made [in] February 2018 on the basis that the delegate was not satisfied the applicant would abide by relevant visa conditions.

4. The applicant appeared before the Tribunal on 28 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [a] friend. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.  He attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. At the Tribunal hearing the applicant confirmed his immigration history and other matters as set out in the delegate’s decision record, summarised as follows.

   ·The applicant came to Australia [in] September 2009 as the holder of a [temporary visa].

   ·The applicant became an unlawful non-citizen after his [temporary] visa ceased [in] October 2009.

   ·[In] February 2018 the applicant was located by [State] police and detained.

   ·The applicant lodged a Protection visa application [in] February 2018.

8. The issue in this case is whether the applicant will abide by future visa conditions: cl.050.223. This 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.

9. 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].

10. 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.

11. As discussed at hearing, the Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    ·8101 – The holder must not engage in work in Australia.

    ·8207 – The holder must not engage in studies or training.

    ·8401 – The holder must report (a) at a time or times and (b) at a place specified by the Minister for the purpose.

    ·8506 – The holder must notify change of address.

12. At the Tribunal hearing the applicant said he would abide by the visa conditions if the visa is granted. He said he did not contact the Department in the period he was unlawful because he was scared of being sent back to Cambodia.  The Tribunal accepts he may have been worried to some extent to contact the Department, in case this resulted in him having to return to Cambodia.  However the fact that he did not for such a long period of time indicates his reticence to keep in touch with the Department, which is a condition of a future bridging visa.  The applicant also said he was not aware that he could approach the Department to try and sort out his immigration status.  However this is contradicted by his representative’s submission to the Tribunal that the applicant, via his friends in Australia, had sought legal advice about regularising his immigration status before the applicant was detained and the Tribunal therefore does not accept he was not aware that he could approach the Department.  The applicant’s failure to contact the Department at all during over eight years in Australia causes the Tribunal to doubt whether he will abide by the visa condition requiring him to report to the Department as directed, and advise them of a change of address. 

13. At hearing the Tribunal discussed with the applicant the ‘no work’ condition which would be imposed on a future bridging visa.  He said he has never worked in Australia and has been financially supported by a friend from Cambodia called [Ms A].  He lived with her, her husband, their two children and a few others before being detained, in [a suburb].  She provided the applicant with accommodation, food and spending money in exchange for some house work and other odd jobs around the house. 

14. The Tribunal has some concerns with the applicant’s claim that he has never worked in Australia – in breach of a condition of his original [temporary] visa - and his assertions that he will not work in Australia unless legally allowed to.  That is because it finds it implausible that the applicant has been supported by a friend in Australia for eight years without working, apart from a few odd jobs around the home.  In addition, the applicant told the delegate at interview (as set out in the decision record, a copy of which the applicant provided to the Tribunal on review) that he intends to stay in Australia to work to repay a debt in Cambodia, which casts doubt on his claims that he will not work.  At hearing the applicant said that was incorrect, a mistake he attributed to the interpreter at the time.  What he said was that a friend has supported him in Australia and the debt he has in Cambodia is a separate issue.  He said he would work only if permission was granted.  However the Tribunal notes the delegate states the applicant ‘repeatedly’ stated that he needs to work to support himself in the community and therefore the Tribunal does not accept his explanation that it was an interpreter’s mistake.   

15. On the matter of the debt, the applicant told the Tribunal he owes USD[amount] to a bank and money lenders in Cambodia, which he borrowed in 2008 to help support his parents’ flagging business there.  When asked why he did not work in Australia to help repay his debt, the applicant said because he was not allowed to work in Australia and respects Australia’s laws and regulations. However his assertions in this respect are undermined by the fact that he remained in Australia for over eight years after his [temporary] visa had expired as an unlawful non-citizen and made no attempts to contact the Department during this time.  For these reasons, and given other credibility concerns the Tribunal has with the applicant’s case as set out above, the Tribunal does not accept the applicant’s claims that he has never worked in Australia and is not satisfied that he would abide by the ‘no work’ visa condition that may be imposed.    

16. The Tribunal notes a further concern it has with the applicant’s case is the fact that he came to Australia on a [temporary] visa claiming to only stay here temporarily, yet he acknowledged at hearing that he planned to stay in Australia long term.   

17. As well, he acknowledged at hearing that he lied to police by giving an incorrect name in February 2018, which indicates his willingness to evade authorities.  He claims he did so at the time because he was afraid he would be ‘extradited’ to Cambodia. The Tribunal accepts he may have been worried about what might happen to him once the Australian authorities knew about his immigration status, however this does not overcome the concerns the Tribunal has with the applicant’s case as discussed above and below in the decision record. 

18. The applicant told the Tribunal if his bridging visa application is successful he plans to live with [Ms A], her family and the others whom he lived with in the past.  She will financially support him as well, as she did in the past, in exchange for him undertaking some odd jobs around the house. The Tribunal notes no evidence has been provided from [Ms A] confirming that is the case.  Five of the applicant’s friends came to the hearing to support him, as observers and towards the end of the hearing one of them [said] she is willing to help him out financially or by providing accommodation.  However she noted that she does not work and then clarified that she would help out with a little bit of money, for example buying him a meal on occasion.  The Tribunal accepts the applicant has the support of friends in Australia, emotionally and to a limited extent financially.  However this fact does not overcome the concerns the Tribunal has with this case as set out above. 

19. The representative submitted that the applicant’s friends in Australia had approached him to seek advice about the applicant regularising his immigration status before he was located by the police in February this year, noting that the applicant was scared to approach the Department, but that his intention (to regularise his status) was genuine.  He said the applicant’s friends were trying to find the applicant a partner, but were unsuccessful.  The representative advised that the applicant should apply for a protection visa first, and then find a partner: it was only ‘bad luck’ that he was detained beforehand.  The Tribunal is willing to accept that the applicant and/or his friends may have been considering approaching the Department to sort out his immigration status before he was located by the police in February, and had sought legal advice about his options.  However this does not overcome the fact that he had not done so in the eight years he was unlawful.

20. The representative also emphasised that the applicant has a number of friends in Australia – including those who attended the hearing – who are very supportive and will assist him including by making sure he abides by any future visa conditions that may be imposed.  On this point the Tribunal notes the existence of the applicant’s friends over eight years when the applicant was unlawful did not result in him contacting the Department to regularise his immigration status, which indicates that their influence was not particularly positive in terms of abiding by visa conditions.  The Tribunal does not find their support would overcome its concerns with the applicant abiding by relevant future visa conditions. 

21. The representative also submitted that as the Bridging E (Class WE) visa was refused after the lodgement of the applicant’s protection visa, it should have been considered a legal and valid application, noting that in common law, procedural law cannot override ‘substantive right of a person’.  He submitted that had the application been lodged on 17 February 2018 the applicant would have been granted a Bridging E (Class WE) visa.  Reference is made to Khandakar’s case where, the representative contends, the High Court interpreted that the applicant meets the requirements of cl.050.21(3A) if the applicant has made in Australia a valid application for a substantive visa of a kind that can be granted.  Further, it is submitted that the Department’s Procedures Advice Manual (PAM) in relation to cl.050.212(3A), 050.212 (4A), 050.212(4)(D) explain that the extension of time to lodge a bridging visa is legitimate.  At hearing the representative argued that once the applicant lodged a substantive visa (i.e. the Protection visa), given his intent was there before hand, the delegate could have granted him a Bridging E (Class WE) visa.

22. The Tribunal has considered these submissions. However, as discussed at hearing the Tribunal is reviewing a decision to refuse to grant a Bridging E (Class WE) visa, and in doing so assessing whether the applicant meets the relevant criterion: it is irrelevant whether the delegate could have granted the applicant a Bridging E (Class WE) visa at the time, given they did not.  Also the issue in dispute, as discussed, is the time of decision criterion related to whether or not the applicant would abide by future visa conditions (cl.050.223), not  whether or not he meets time of application criterion requiring that the grounds for the visa are met, which the representative’s submissions and the case of Khandakar[1] refer.  The applicant meets this time of application criterion given he applied for a substantive visa at the time.    

    [1] MIAC v Khandakar [2011] FCAFC 22 Federal Court of Australia, Emmett, Stone & Foster JJ, NSD 1115 of 2010, 28 February 2011

23. Having regard to the totality of the evidence before it, the Tribunal is not satisfied that the applicant would comply with the above conditions of his bridging visa.  

24. Having regard to the above, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted without the added incentive of a security. In accordance with the approach set down in in Tennakoon v MIMIA [2001] FCA 615 (Gray J) and Applicant VAAN of 2001 v MIMA [2002] FCA 197 (Finkelstein J), the Tribunal has therefore proceeded to consider whether the conditions would be complied with if a security is taken.

25. In the present case there is not a decision made under s.269 of the Act before the Tribunal to review and therefore the Tribunal does not have the power to require a security pursuant to s.269 of the Act.   Nonetheless, the Tribunal has considered whether or not it considers if the applicant will comply with conditions, should a security be required of a particular amount.  At hearing the representative said the applicant has a number of friends willing to support him – including by acting as guarantors in relation to a security and/or bond – if required.  When asked if he had anyone in mind in particular or a specific amount, the representative responded in general terms that the applicant had many supportive friends.  As mentioned, a friend who was present as an observer at the hearing [said] she was willing to help him out financially or by providing accommodation.  However she noted that she does not work and said she would help out with a little bit of money, for example buying him a meal on occasion.  The Tribunal has had regard to the general offer of a bond.  However, having regard to its concerns as set out earlier, particularly in relation to the applicant’s poor immigration history, the Tribunal considers that no amount of security would ensure the applicant’s compliance with the conditions which would be imposed on his visa.

26. Having regard to the above, 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.

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

28. 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

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

    Nicole Burns
    Member