1809456 (Migration)

[2018] AATA 1955

1809456 (Migration) [2018] AATA 1955 (12 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1809456

MEMBER:Jason Pennell

DATE:12 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

·cl.050. cl.050.223 of Schedule 2 to the Regulations

The Tribunal also directs the primary decision maker

·conditions 8101 (no work), 8207 (no study) 8401 (reporting obligations), 8506 (notify change of address), and 8564 (no criminal conduct) will be imposed if the visa is granted; and

·to require a security of $25,000.00 for compliance with the conditions.

Statement made on 12 April 2018 at 11.09

CATCHWORDS

Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – History of non-compliance with visa conditions – Whether the applicant will abide by conditions in future – Financial support available to applicant – Various conditions imposed – Significant security bond required – Decision remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5, 116, 269, 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212(3), 050.221, 050.222, 050.223, 050.612A, 050.614, 050.617, 051.211, Schedule 8, Conditions 8101, 8401, 8506, 8564

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

Liu v MIAC [2008] FMCA 725

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 on 27 March 2018. At that time Class WE contained two subclasses being 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 on 4 April 2018 on the basis that the applicant did not meet the requirements in clause 050.223 in Schedule 2 of the Regulations. That is the delegate was not satisfied that the applicant will abide by the conditions imposed on the visa. The applicant appeared before the Tribunal on 11 April 2018 to give evidence and present arguments. The applicants [partner] attended the hearing in support of the applicant but did not give evidence. 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 his registered migration agent. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is I whether the applicant will comply with the conditions imposed on the visa.

The grounds for seeking the visa - cl.050.212

1. 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.[1]

   [1] cl.050.221 Schedule 2 of the Regulations

2. In this case, the applicant is seeking to meet cl.050.212(3) in Schedule 2 of the Regulations. That is, the applicant has made, in Australia, a valid application for a substantive visa which has not been finally determined. A ‘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.

3. In this case the applicant has made an application for a partner visa which has not been finally determined. As such, the Tribunal finds that the applicant meets cl.050.212(3) in Schedule 2 of the Regulations.

The requirement to be interviewed by an authorised officer - cl.050.222

1. Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause. The exceptions are either:

   (a)the applicant is not in immigration detention, holds a Bridging E visa, has made a valid application for a substantive visa, and will not be seeking a further Bridging visa E visa with different conditions; or

   (b)the applicant is not in immigration detention, does not hold (but previously held) a Bridging E visa, has made a valid application for a substantive visa and the authorised interview officer was not available at specific times; or

   (c)the applicant meets cl.050.212(4AAA) or continues to meet cl.050.212(4AB).

2. In this case the applicant is in immigration detention and does not hold a Bridging E visa. The Tribunal is satisfied that the applicant meets cl.050.222 in Schedule 2 of the Regulations as he was interviewed by an authorised officer on 27 March 2018.

Whether the applicant will abide by conditions - cl.050.223

1. 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.

2. 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.[2]

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

3. Having regard to cl.050.612A and cl.050.614 and the general circumstances of the case, the Tribunal considers that the appropriate visa conditions would be 8101 (no work), 8401 (reporting obligations), 8506 (notify change of address), and 8564 (no criminal conduct).

4. 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.

5. If the Tribunal is satisfied that the applicant will only abide by the conditions if given a financial incentive to do so, it is necessary to consider the security decision made pursuant to s.269 of the Act.[3] Conversely, if not satisfied that an applicant would abide by the conditions attached to a bridging visa even where there is a financial incentive to do so, the occasion for the imposition of a security does not arise.[4]

   [3] OpCit at [10]

   [4]  OpCit per Finklestein J at [21]-[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37].

6. In considering the security decision, the amount of security should be a sum that is designed to secure compliance with the relevant conditions, having regard to the conditions that must be complied with, and the particular circumstances of the person bound by the requirements, notably their financial position.[5]

   [5] VAAN at [27]

7. In this case, cl.050.617 applies because the applicant was a non-citizen who applied for a substantive visa while in immigration detention. This clause prescribes that, one or more of condition listed under that clause may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

   (a)NO WORK - 8101          

   The holder must not engage in work in Australia.

   (b)NO STUDY – 8207

   The holder must no engage in study in Australia

   (c)REPORT AT SPECIFIED TIME AND PLACE - 8401  

   The holder must report:

   (i)     at a time or times; and

   (ii)     at a place;

   specified by the Minister for the purpose.

   (d)NOTIFY CHANGE OF ADDRESS - 8506         

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

   (d)NO CRIMINAL CONDUCT - 8564        

   The holder must not engage in criminal conduct.

8. The applicant was born on [a particular date] in China. On 30 July 2012 he was granted a Student [visa] and he arrived in Australia [in] August 2012. The applicant subsequently applied for and was granted an extension of his student visa on two occasions, being [in] July 2013 and [March] 2014 respectively. The applicant’s student visa was to expire on [a particular date in] November 2016. [In] October 2014 the applicant’s student visa was cancelled pursuant to s.116 of the Migration Act.

9. The applicant’s explanation for the seeking the two extensions on his student visa was on the first occasion he had not fully completed the English course he was undertaking at that time and on the second occasion he was intending to undertake a [particular] course. The applicant however, was not able to tell the Tribunal the name of the course or the institution at which he was intending to study.

10. The applicant’s evidence was in or about August 2014 his family experienced financial difficulties and as a result they were not able to continue to support him as a student in Australia, including his tuition fees. The applicant’s evidence was that while he had been a student he had worked, within the conditions of his student visa, as [an Occupation 1] on a contract basis. As a result of his family’s change in financial circumstances he says that he needed to find additional work. As a result in or about October 2014 the applicant worked for a month in Adelaide as [an Occupation 1] in [a particular] industry. He then returned to Melbourne and has worked as [the same occupation] in the [same] industry on a contract basis up until the date he was detained.

11. At the commencement of the hearing the applicant provided the following documentation:

    (a)The applicants Birth Certificate

    (b)Copy of bank transfer of $35,000.00.

    (c)Statement from [Mr A] dated [in] April 2018;

    (d)Copy of the applicant’s Chinese [passport] issued [in] 2010 and expiring [in] 2020.

12. During the course of the hearing the applicants evidence was that he:

    (a)understood conditions of his student visa;

    (b)that he ceased studying in or about August 2014;

    (c)was aware that his student visa had been cancelled in or about October 2014;

    (d)conducted a self-check [in] February 2015 and that he was aware from that time he was in Australia unlawfully;

    (e)did not travel back to China with his girlfriend in 2017 because he was aware he was in Australia unlawfully.

13. The applicant’s evidence to the Tribunal was different to that he gave during his compliance client interview on 27 March 2018 and to the delegate on 4 April 2018.

Condition 8101 – No work

1. The applicant’s evidence was that he would comply with the condition not to work. His evidence to the Tribunal was that his family would support him in Australia. His evidence was that his mother worked as [an Occupation 2] and that his father owned and operated a [business]. He said that his father’s business was now doing well and that they now had the means to be able to support him in Australia. He said that since his interview with the delegate on 4 April 2018, he had contacted his family about his situation and that his family had now promised to support him pending the determination of his partner visa application. As a result they had transferred $35,000.00 to him. The applicant produced the copy of the bank transfer as evidence of the transfer of money to him from his family. The document was in Chinese and supplied to the Tribunal without a certified translation. Nevertheless, based on the applicants evidence in relation to his family in China and the transfer of money document relied upon by him, the Tribunal finds that the applicant’s family are able to support the applicant pending the determination of his partner visa application.

2. The Tribunal referred the applicant to his evidence to the delegate on 4 April 2018 that a friend, [Mr B], would provide $5000.00 as part payment for a security deposit and an addition $500.00 per week for his living costs. The applicant conformed his evidence to the delegate but said that the money promised by [Mr B] would not be paid by him personally but rather from a group known as the ‘[Group 1]’ of which both the applicant and [Mr B] are members. The applicant did not provide the Tribunal with any evidence as to the status or existence of [Group 1] nor its solvency. The applicant’s evidence in relation to [Group 1] is in contrast to [Mr B's] statement dated [in] March 2018 in which he claims he will personally support the applicant.    

3. Nevertheless, despite his contrasting evidence the applicant now says that as a result of his recent the conversation with his parents and the transfer of money to him that his parents will now support him until the determination of his partner visa application. As a result it is no longer necessary for him to rely on any previous evidence of financial support that he may have provided.   

4. The fact that the applicant has given conflicting evidence about the financial support he is to receive pending the determination of his partner visa means that the Tribunal has some doubt about the applicant’s evidence that he will comply with the condition that he not work. Nevertheless, based on his evidence that his parents will support him and the money transferred to him, the Tribunal is prepared to give the applicant the benefit of the doubt and accept that his family will support him as claimed. The Tribunal is therefore satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant meets cl.050.223.

Condition 8207- No study

1. The applicant conceded that he had not studied since August 2014. The applicant accepted that he had not complied with his student visa and that it had been cancelled. His evidence was that he had no intention of engaging in any further study. The Tribunal accepts the applicant’s evidence and accepts that he will comply with a condition that he not engage in any study. 

Condition 8506- Notify and change of address

1. The applicant’s evidence was that he resides with his partner at [a particular address] (‘the property’). The property is owned by his partner. The applicant’s evidence was that he wishes to remain living with his partner. His evidence was that he had lived at the property since in or about mid-2015. There was no evidence to suggest that he intended to move premises. However, the fact that he had not engaged with the department and remained unlawful for a period of time, means that there is a risk that the applicant will not report any change of address. However, the Tribunal is of the view that any such risk is relatively low and can be resolved by the imposing a security bond on the applicant. 

Condition 8401 – Must report to the department.

1. The applicant’s evidence was that he would comply with the requirement to report to the department on a regular basis. However, given the applicant’s history of non-compliance and the period of time he wilfully and knowingly remained unlawful in Australia, the Tribunal has some doubt about the applicant ability to comply with the reporting condition. The applicant’s evidence was that despite knowing he was unlawful, he was so happy in his relationship with his partner and that he merely did nothing to rectify his unlawful status. However, the applicant’s accepted by not contacting the department he put at risk to his desire to remain in Australia and continue his relationship with his with his partner.

2. By reason of the applicant past behaviour of not complying with the conditions of his student visa and his no engagement with the department the Tribunal is of the view that a substantial security bond must be paid.  The rational for imposing a security bond is to ensure that the applicant complies with the conditions imposed on the visa. In this case, there is significant concern that the applicant will not engage with the department due to his immigration history of not complying with the conditions of his previous student visa and that he wilfully and knowingly remained in Australia unlawfully without engaging with the department. 

Condition 8564- must not engage in criminal activity.

1. The applicant’s evidence as that he would comply with condition 8564. The applicant was located at a premise at which the Australia Federal Police (‘AFP’) executed a drug search warrant. The applicant’s evidence was that worked with one of the residents of the premise and that at the happened to be there picking up some tools for work at the time of the search. The applicant was not charged with any offence and is not of any interest to the AFP. As such, the Tribunal finds that the applicant will comply with condition 8564.

Security Bond

1. In this case, due to his immigration history of not complying with the conditions of his previous student visa and the fact that he wilfully and knowingly remained in Australia unlawfully without engaging with the department, there is significant concern that the applicant will not engage with the department in the future. As such the tribunal finds that a significant security bond is required to be paid by the applicant in this case. Policy guidance supports the sum of between $10,000.00 and $40,000.00 as a significant sum to ensure compliance.

2. The applicant has shown ability to raise money when required. His evidence is that he has paid $7,000.00 in relation to the partner visa application, has $5,000.00 in cash at home, has been promised an additional $5,000.00 from [Mr B] and has been provided $35,000.00 for his living expenses by his parents.  In addition, he is living with his partner at the property.  His evidence was that she is working and receiving $1,000.00 per fortnight and that she receives income by renting the property’s available bedrooms.

3. Accordingly the Tribunal is of the view that a security bond of $25,000.00 would be appropriate in this case.

CONCLUSION

1. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

2. 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

1. The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

   ·cl.050.223 of Schedule 2 to the Regulations

2. The Tribunal also directs the primary decision maker to indicate to the applicant that:

   (a)conditions 8101 (no work), 8207 (no study), 8401 (reporting obligations), 8506 (notify change of address), and 8564 (no criminal conduct) will be imposed if the visa is granted; and

   (b)to require a security of $25,000.00 for compliance with the conditions.

Jason Pennell
Member