1809860 (Migration)

[2018] AATA 1205

1809860 (Migration) [2018] AATA 1205 (18 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1809860

MEMBER:Robert Wilson

DATE:18 April 2018

PLACE OF DECISION:  Sydney

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.050.223 of Schedule 2 to the Regulations, and

·cl.050.212(3) of Schedule 2 to the Regulations.

The Tribunal also directs the primary decision maker

·to indicate to the applicant that conditions 8401, 8101, 8505 & 8506 will be imposed if the visa is granted; and

·to require a security of $12,500 for compliance with the conditions.

Statement made on 18 April 2018 at 2:02pm

CATCHWORDS
Migration – Bridging E (Class WE) – Subclass 050 (Bridging (General)) visa – Substantive visa application not finalised – Applicant in detention – Breach of visa conditions –No arrangements to depart Australia – Mitigating circumstances – Daughter finishing her degree – Daughter’s illness –Bridging visa conditions imposed – Brother -in-law willing to act as a guarantor – Security bond for compliance

LEGISLATION
Migration Act 1958 ss 73, 189, 269
Migration Regulations 1994 Schedule 1 Item 1305 Schedule 2 cls 050.212, 050.223, 050.617 Schedule 8 Conditions 8101, 8401, 8505, 8506, 8512, 050.617

CASES
Chenv MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
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 on [date] April 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 on 9 April 2018 on the basis that the applicant did not satisfy 050.223 of the Migration Regulations 1994 (the Regulations). The applicant appeared before the Tribunal on 16 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s [relative], [Mr A], and the applicant’s cousin [Ms B]. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether cl.050.212 and cl.050.223 are met.

   The grounds for seeking the visa - cl.050.212

7. At the time of application, the applicant was the subject of a substantive visa application that had not been finally determined, therefore he satisfies subclause 050.212 at the time of application.

8. The applicant must continue to satisfy this criterion at the time of decision: cl.050.212(3). The applicant has applied for a Protection visa, which is a substantive visa, which has not been determined at the time of decision. As cl.050.212(1) expresses the subparagraphs in cl.050.212 as alternatives, a finding that the applicant meets cl.050.212(3) means there is no need to make findings on the rest of cl.050.212 and therefore there would be no need for findings on the acceptable arrangements to depart Australia ([9] to [22]).

9. Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The Department’s Procedures Advice Manual 3 (PAM3), whilst not binding on the Tribunal, nevertheless provides some guidance: Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]).

10. At the hearing held on 16 April 2018 the applicant stated that he did not have a valid ticket to depart Australia.  He later stated that he wanted to leave Australia but his daughter’s thyroid and her immune system are bad.  She will graduate in July or August 2018.  However, she will be allowed to study for a Master’s Degree.  If she continues her study he would like to go back to China with her.  He wants to look after her until her health has recovered.  She does not live with the applicant in [Australian city 1].   He is presently in the Detention Centre.   

11. Further, the Tribunal asked the applicant if he had made, or was he the subject of acceptable arrangements to leave Australia?  He replied, ‘Yes.’ He said he wanted to look after his daughter, and then he will go back to China.

12. The Tribunal asked if he went back, would he work?  He said he had no choice, he would have to support his daughter, and make a living.     

13. The Tribunal asked the applicant if he wished to depart Australia voluntarily.  He said, ‘Yes, I will voluntarily leave Australia.’ The Tribunal asked whether he meant now, or after his daughter graduates? The Tribunal did not hear any response.

14. The Tribunal asked if he breached conditions of his last BVE that were granted on departure grounds?  He stated that time his daughter was studying and he was in an ambiguous situation to leave or not to leave.  At that time he had a different legal representative who wanted the applicant and his daughter to leave first, but he did not know how to do that. He had an Australian lawyer and the applicant could not read English.  The Tribunal asked if his daughter knew how to read English.  He stated that she was [age] years old and her English was not so good at that stage. 

15. The applicant stated at the Tribunal hearing that his [relative], [Mr A], had said that he will put up money to ‘get the applicant out.’ The Tribunal finds [Mr A] did write a letter dated  [April] 2018 in which he wrote: ‘I would like to sponsor him to release from the [Detention] Centre.  I will provide him the accommodation, food, medical expenses and other related costs and to ensure that he will be supported by me and he will comply with the visa condition.  I will also be willing to pay the security bond to the Department of Home Affairs as you request.’ He also referred to other provisions.  He wrote that the applicant will be supported by him and he will comply with the visa condition.  He also stated that he will be willing to pay the security bond to the Department of Home Affairs, as requested.

16. At the Tribunal hearing [Mr A] stated he will fully support the application and comply with Australian law. He will fully support the applicant. [Mr A] stated at the hearing that the daughter will finish university in a few months’ time, however, the Masters’ degree of the daughter is nothing to do with him.

17. The Tribunal accepts the evidence of [Mr A].  The Tribunal understands from his evidence that he is prepared to support the applicant, and his daughter, but not if the daughter undertakes a masters’ degree. 

18. [Mr A] provided a Cheque/Savings – Account Details, dated [April] 2018.  It showed he has available funds.  He has a residence and a [Australian city 1] water bill issued on [date] January 2018 and a Council rates notice dated [January] 2018 showing the location of his residence. He has also provided an Australian Taxation Office Notice of Assessment for the year ended 30 June 2016 which shows his taxable income.  He has been employed at the one firm since October 2012, and he has provided a Pay Advice from the company with the payment date  [April] 2018.      

19. The Tribunal asked the applicant again at the Tribunal hearing whether he would be able to obtain travel documents within 21 days to facilitate the removal of him and his daughter.  He said he would leave voluntarily, but not until his daughter’s health is better.

20. Having regard to all the evidence, the Tribunal is not satisfied that the applicant meets regulation 050.212(2).  In this regard, he has not made any arrangements to depart Australia in the near future.  He is attempting to stay in Australia until his daughter graduates and then while she undertakes her Masters’ Degree in Australia. At present the applicant’s daughter, who is also Unlawful Non Citiizen, is in the community.  

21. He has been granted two BVE’s on departure grounds in the past and he has failed to depart Australia.

22. The applicant meets 050.212(3) on the basis of the Protection visa application.

    Whether the applicant will abide by conditions - cl.050.223

23. 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.

24. 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].

25. The applicant first and last arrived in Australia on [date] June 2007 as the holder of a Spouse (Provisional) visa subclass UF 309.  He travelled with his daughter who held the same visa as she was granted the visa on the basis of being his dependent.  His visa subclass BC100 application was refused on [date] May 2010.  A Bridging Visa A was granted in association to the visa application on the same day and his Spouse visa subclass UF309 ceased on [date] May 2010.

26. On 10 May 2010 the applicant sought merits review of the refusal of his Spouse Visa application with the Migration Review Tribunal (MRT), and on 26 September 2011, the MRT determined they had ‘no jurisdiction’ as timeframes were not met.  The applicant’s associated BVA ceased on [date] October 2011, and he became an UNC for the first time.

27. On [date] January 2012 and [date] February 2012 [the applicant] was granted Bridging visas E (BVE) on the basis of making arrangements to depart Australia. [The applicant]’s last BVE remained valid until [date] February 2012, the date he was directed to the part as per visa condition 8512, however, he failed to depart, became an UNC and concealed himself in the community.

28. Over six years later, on [date] April 2018, [the applicant] was located by [Police] during a Random Breath Test operation. He was identified as an UNC after a status check with the Department and was taken to [a] Police Station for an interview with Immigration Status Service (ISS). Following the interview with ISS, [the applicant] was detained pursuant to section 189 of the Migration Act 1958 (the Act) and transferred to [a] Immigration Detention Centre , where he currently remains.

29. On [date] April 2018 [the applicant] lodged an application for a Protection Visa (PV). This application was deemed valid and upon the referral of this application and the Detention Review Officer sighting the referral (Item 1305(3)(c) of the Migration Regulations) on [date] April 2018, an associated BVE was triggered given the applicant is in immigration detention.

30. A stand-alone application for a BVE was also launched on [date] April 2018 and this came to the attention of the Detention Review Officer on [date] April 2018.  This application was withdrawn on [date] April 2018. The supporting documents that were provided with this application are being considered in the assessment of [the applicant]’s associated BVE application.

31. The Tribunal finds that the applicant wilfully remained in the community from [date] October 2011, and he became an UNC for the first time.

32. On [date] January 2012 and [date] February 2012 [the applicant] was granted Bridging visas E (BVE) on the basis of making arrangements to depart Australia. However, he wilfully failed to depart and concealed himself in the community.

33. He remained concealed in the community for 6 years, and on [date] April 2018, [the applicant] was located by [Police] during a Random Breath Test operation. He remains in the [detention centre].

34. As to any mitigating circumstances, the Tribunal is aware that the applicant has a daughter who is studying at university, and who is sick with problems.  The Tribunal has asked for a specialist report about those problems, but at the time of writing the specialist’s report has not been provided.

35. The applicant appeared to be a father who is trying to do his best for his daughter by way of education in Australia. The Tribunal is concerned that the applicant will try to stay in Australia whilst his daughter is completing her bachelor’s degree and commences her Masters’ degree. However, the Tribunal considers that the applicant is likely to try to stay in Australia so he can assist his daughter.

36. On the other hand, [Mr A], an Australian citizen, provided strong evidence that he would provide assistance to the applicant, which the Tribunal accepts; but it appears to be limited to the applicant’s daughter’s study concluding at the bachelor’s degree level, and not to continue to the Masters’ degree.

37. Further evidence was provided by [Ms B], a cousin of the applicant. She is married and works part-time.  She said she knows everything about the applicant and his daughter. She said that they can provide assistance to him.  The witness said that she is concerned about the applicant’s daughter, and her condition is bad.  The witness hopes that the applicant can stay in Australia and look after his daughter, who has thyroid problems and her neck is swollen. This condition has occurred 2 to 3 times. The daughter has been to see the specialist. The cost of the specialist is very high.  Whenever the applicant sees his daughter he is very sad.

38. The applicant gave oral evidence to the Tribunal as follows.  As to how he will support himself if he stays in Australia, he said he has three female cousins and a male cousin and they will support him.  All of the applicant’s cousin’s in Australia were known to him in China before he left to come to Australia.  If he is not allowed to work, his relatives will look after him.

39. The Tribunal asked the applicant where was his home address when he was living in the community.  He said he lived in his brother’s place [for] many years.

40. He stated that he will certainly abide by any conditions. 

41. The Tribunal said one of his conditions would be no work - 8101. The applicant stated that if he is not allowed to work, he will not work.

42. As far as a security bond is concerned, the applicant stated that it depends on him. Whatever bond is required he will provide.  The funds would come from his relatives and friends.

43. The Tribunal has considered the likely conduct of the applicant. Firstly, he appeared to be very attached to his daughter. He and his wife divorced and the applicant has cared for, and helped his daughter. The Tribunal considers that the applicant will do anything to help his daughter graduate and also to obtain a Masters’ degree.  He is also concerned about her illness.

44. 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: VAAN at [10]. 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: VAAN per Finklestein J at [21]-[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37].

45. 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: VAAN at [27].

46. In this case, cl.050.617 applies because the applicant reaches the requirements of this subclause This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    *8401 Report to the Department as directed.

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

    *8505 Reside at specified address.

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

47. The Tribunal is satisfied on the evidence before it that the applicant will abide by conditions imposed on the visa if granted. In reaching this decision, the Tribunal has been impressed with the evidence of the applicant’s relatives, [Mr A]and [Ms B]. The Tribunal considers that the two relatives who gave evidence, as well as other possible cousins, are aware of the situation and will help to ensure that the applicant will abide by the conditions.  The Tribunal also considers that the applicant will be aware of the impact on his relatives if he does not abide by the conditions.

48. On the evidence before it, the Tribunal is satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant meets cl.050.223.

49. Further, the Tribunal is requiring a security of $12,500 for compliance with the conditions.  The Tribunal considers this amount to be appropriate to encourage compliance with the conditions imposed on the visa but not so high to be beyond the applicant or guarantor’s capacity to pay.

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

51. 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

52. 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, and

    ·cl.050.212(3) of Schedule 2 to the Regulations.

53. The Tribunal also directs the primary decision maker

    ·to indicate to the applicant that conditions 8401, 8101, 8505 & 8506 will be imposed if the visa is granted; and

    ·to require a security of $12,500 for compliance with the conditions.

    Robert Wilson
    Member