1812514 (Migration)

[2018] AATA 2237

1812514 (Migration) [2018] AATA 2237 (5 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1812514

MEMBER:James Lambie

DATE:5 June 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 05 June 2018 at 4:11pm

CATCHWORDS
Migration – Refusal – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Unlawful Non-Citizen – Criminal offences – Student Dependent visa cancelled due to relationship breakdown– Abide by future visa conditions – Credibility concerns – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 73, 75, 269, 359A
Migration Regulations 1994, r 2.24, Schedule 2, cls 051.211, 050.221, 050.223, Schedule 8

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (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. Mr [A] applied for the visa on 23 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 27 April 2018 on the basis that the delegate could not be satisfied that the applicant would abide by conditions 8101, 8401 and 8506.  The applicant appeared before me on 10 May 2018 to give evidence and present arguments. I also received oral evidence from the applicant’s wife, Mrs [A], and [mother]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. Mr [A] was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. For the following reasons, I have concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether, if granted a Bridging E (class WE) visa, Mr [A] would comply with conditions imposed on it, namely:

   8101 – the holder must not engage in work in Australia;

   
   

   8207 – the holder must not engage in any studies or training in Australia;

   
   

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

   
   

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

   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 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].

10. 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].

11. Mr [A] is currently in immigration detention, having been arrested [in] December 2017.  He has been charged with [criminal offences].  He was granted bail [in] March 2018 on [amount] security and 8 conditions.

12. I have given careful consideration to Mr [A]’s history and circumstances, and to the evidence given and submissions made on his behalf.  He arrived in Australia with his then wife on 5 July 2008 as a dependent on a [Student] visa. That visa was cancelled on 19 June 2012 as a consequence of his divorce.  He had separated from his wife in 2010 and divorced in 2011:  the separation and divorce did not come to the attention of the Department by any action of Mr [A].   In the event, since 19 June 2012 he has been in Australia as an unlawful non-citizen.

13. Mr [A]’s evidence is that, since the cancellation of his visa and with the one exception of the period immediately before his arrest, he had not engaged in any form of paid employment.  He says that by 2012 he had accumulated some $10,000 in savings and that from 2012 to 2017 he lived off this and the earnings of his current wife.

14. Mr [A] met his current wife in early 2011.  They have two [children].   He did not live with his wife until 2013 because his father-in-law strongly disapproved of the relationship. Instead, he rented share accommodation across the road and would visit his wife while his father-in-law was away.  He says that it was “impossible” to work because he assumed the housework and childcare responsibilities and, later, the palliative care of his father-in-law while his wife was working.  He says that his wife’s earnings were sufficient to sustain the family. 

15. His reasons for failing to take any steps to regularise his visa status are that, at the time of his divorce he was very young and he was in a new country.  This made it difficult to make decisions: he says he did not know he could be detained as an overstayer, his wife begged him not to do anything that might result in his leaving the country and, if he did seek to regularise his visa status, it would confirm his father-in-law’s prejudice that he was using his relationship to obtain a visa.  None of these explanations are satisfactory.   I noted that, at the time of cancellation, Mr [A] was [age] years old and had been in Australia for four years.  His actions since the cancellation have not been consistent with an unconsciousness of the consequences of becoming an unlawful non-citizen.  Further, his father-in-law became reconciled to the relationship before his death in 2015. 

16. At the time of the hearing, I did not have before me the details of the charges on which Mr [A] was arrested, or any of the relevant extracts from the Department’s files (apart from the delegate’s decision) relating to the background matters of which it was aware at the time of decision. After discussion with Mr [A]’s representative, I decided to obtain the charge sheets by summons and to seek Mr [A]’s submission by way of a letter under section 359A. This was done on 16 May and Mr [A]’s representatives responded on 19 May. The substance of those submissions is that Mr [A] denies the charges and says that they are “unfair”. At the hearing, I cautioned Mr [A] that he did not have to answer any questions about the charges that may have tendency to harm any defence that he may subsequently wish to enter and he indicated that, other than denying the allegations, he would prefer not to engage specifically with them. I draw no adverse inference from this, or from the maintenance of this position from his later submissions. I am, however, mindful of the serious nature of the charges

17. Included with Mr [A]’s response to the section 359A letter was a quantity of statutory declarations and other material attesting to his good character and some other documents prepared in support of his bail application. I have considered this material and taken it into account.

18. Mr [A] has expressed a degree of remorse as to length of time he had remained in Australia as an unlawful non-citizen.  I consider that this remorse stems largely from the predicament in which he now finds himself, rather than from any genuine concern about the extent of his non-compliance with immigration legislation.  He has failed to engage with the Department at relevant times, and at no stage volunteered information about his status, his address or how he might be contacted.  I consider the breaches to be serious and wilful, and that he was well aware of them at all relevant times.  The explanations tendered by him and on his behalf (in essence, that he was preoccupied with family matters) describe circumstances that are no different to those faced by many thousands of visa holders in this country who do not feel the need to resort to subterfuge and evasion. 

19. These findings and others detailed below inform my consideration of the mandatory and discretionary conditions that would apply to the grant of the bridging visa.

    8101:  not to engage in work in Australia

20. This is a mandatory condition.

21. I find the evidence of Mr and Mrs [A] that he did not engage in any form of paid work between 2012 and 2017 to be implausible and unsatisfactory. Mr [A]’s evidence was that he was able to subsist on savings of $10,000 for a period of 5 years and that, for about 3 of those years, he was renting a shared room for $350 a month.  That amounts to $12,600 for rent alone. There was no evidence of any additional sources of income or financial support and I note that, for substantial periods of that time, Mrs [A] was dependent on Centrelink payments and subsidies from her own relatives.  Mrs [A]’s own evidence when asked whether her husband had worked during this period was that she “didn’t think so”, an answer that is at best equivocal in these circumstances.  While some of the statutory declarations made in support of the application refer to his readiness to render household assistance while others were at work, and to provide care to his father-in-law, none make any explicit claim that he never undertook paid work while he was an unlawful non-citizen.  I also note that the work Mr [A] admitted to obtaining in 2017 was apparently readily available to him. 

22. On balance, given Mr [A]’s preparedness to undertake surreptitious work in 2017 – and that, allegedly, in the black economy – I cannot be satisfied that he would not do so again.  For the reasons discussed above I consider it unlikely, despite his denials, that he did not avail himself of other work opportunities between 2012 and 2017.  Such work is, of its nature, conducted in an undocumented and regulation-shy environment and therefore non-compliance is difficult to assess. He was well aware of the work prohibitions over this period and was not deterred.

    8207 – not to engage in any studies or training in Australia

23. This is a discretionary condition. 

24. There is no evidence that Mr [A] has ever evinced any intention to engage in any study or training while he has been in Australia.  While such a condition might be imposed without any expectation of non-compliance, it is likely to be otiose and I do not consider it relevant.

    8401 – to report (a) at a time or times; and (b) at a place; specified by the Minister for the purpose

25. This is a discretionary condition.

26. Mr [A] has signally failed to engage with the Department since entering Australia and has only done so now because of his arrest and detention.  He successfully evaded detection after the cancellation of his visa and has had seemingly little difficulty since in securing residence and employment.  Of all his cohort of friends and family who provided supporting submissions, none mentioned any difficulty he encountered as a consequence of his immigration status, other than the disapproval of his father-in-law.  Similarly, none mentioned any concrete steps that he had taken to regularise his visa status. While he evinced an intention to comply with conditions, there is little weight that can be placed on that statement in these circumstances.  I note that he is subject to reporting requirements as a condition of his bail.  However, such a condition might be relaxed or dispensed with without notice to the Department, or be discharged as a consequence of developments in his criminal matter.  I cannot be satisfied, given Mr [A]’s history, that he would engage with the Department or comply with reporting conditions in that eventuality.

    Provision of security

27. The question of the provision of security was not canvassed by Mr [A]’s representatives at the hearing.  I have, nevertheless, considered the submissions made to the delegate and the reasons for their rejection.  For the reasons given by the delegate and, also, in view of the evidence that Mr and Mr [A] seem to have had access to significant quantities of undocumented cash of very uncertain provenance, I am of the view that the requirement of security would serve little purpose in securing compliance with conditions.

    Other factors

28. I have given careful consideration to the best interests of his children should his bridging visa be refused.  On the evidence available to me, Mr [A] was content to spend significant periods of time apart from his family in order to pursue his work or business interests in [another State].  I am satisfied from the evidence that he and Mrs [A] have a family and social support network such that the best interests of the children will not be unduly affected by his continued detention pending determination of his substantive visa status

29. Finally, Mr [A]’s representatives advanced a submission that the Bridging Visa E had been deemed granted under s. 75 of the Act because the delegate’s decision had been made outside the prescribed time periods. The prescribed period in regulation 2.24(3) is 90 days where a detention review officer has signed a declaration within 2 days of the application being made that the officer believes the applicant will not pass the character test under subsection 501(6), or 2 days if no such declaration has been made.

30. Mr [A]’s representatives argue that no such declaration has been made.  However, the decision record indicates that a declaration was made on 24 April, one day after the application for the Bridging Visa E was made.  Accordingly, the decision was made within the prescribed period.

31. On the evidence before me, I am not satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant does not meet cl.050.223.

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

33. 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

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

    James Lambie
    Senior Member