1812661 (Migration)

[2018] AATA 1959

1812661 (Migration) [2018] AATA 1959 (11 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1812661

MEMBER:Linda Symons

DATE:11 May 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 11 May 2018 at 9:20am

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Assets and expenditures – Free accommodation and food – Financial support – Immigration history – Instructions to psychologist – Credibility concerns

LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2 cls 050.212, 050.223, 050.614

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).

2. The applicant applied for the visa on 27 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 1 May 2018 on the basis that the delegate was not satisfied that the applicant will abide by all visa conditions if granted a Bridging visa.  On 2 May 2018, he made an application to the Tribunal for a review of that decision.

4. The applicant appeared before the Tribunal on 9 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] by telephone.  

5. The applicant was represented in relation to the review by his registered migration agent who 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 AND FINDINGS

7. The issue in this case is whether the applicant satisfies the requirements of cl.050.223.

   Whether the applicant will abide by conditions - cl.050.223

8. 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.

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. In this case, cl.050.614 applies because the applicant has applied for a Protection visa and meets the requirements of subclause 050.212(3A) as he has applied for judicial review of a decision to refuse to grant the visa and the judicial proceedings have not been completed. The Tribunal has before it evidence that his case is listed for an interlocutory hearing before the Federal Circuit Court [in] July 2018. Clause 050.614 prescribes that, if condition 8101 or 8116 applied to the last visa held by the applicant, that condition must apply. The evidence before the Tribunal is that the last visa held by the applicant was a Bridging visa, that was issued on 10 February 2015 and expired on 5 December 2017, and was subject to condition 8101.

12. Therefore, condition 8101 (No work) is a mandatory condition attached to the visa. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    ·8401      Report as directed.

    ·8505      Reside at a specified address.

    ·8207      Not engage in any studies or training in Australia.

13. In considering whether the applicant would comply with the mandatory condition and the conditions imposed on the Bridging visa, the Tribunal has had regard to his personal circumstances, his financial circumstances, his immigration history including his previous breaches of immigration laws, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach, whether the applicant has shown any contrition for his unlawful conduct, the evidence given by [Mr A] and the submissions made by his migration agent.

14. In considering whether the applicant will comply with mandatory condition 8101 (No work) and the other conditions that may be imposed on the Bridging visa, the Tribunal discussed with him his personal circumstances and his financial circumstances. His evidence is that he was the holder of a Student visa in [Country 1] and was studying a [Diploma]. He stated that he completed the first semester and came to Australia, as the holder of a Visitor visa, during his end of semester break on the invitation of a friend. He stated that one of his friends advised him to apply for a Student visa in Australia and took him to a migration agent. He stated that he applied for a Student visa but his application was unsuccessful because the Department of Home Affairs (the Department) was not satisfied that there were exceptional circumstances. He stated that he cannot now return to his studies in [Country 1].

15. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 1 May 2018 which indicates that he lodged an application for a subclass 572 Student visa on 10 September 2013 and his application was refused by the Department on 29 October 2013.

16. The applicant gave evidence that when his application for a Student visa was refused he changed migration agents and instructed his current migration agent. He stated that an application for review was lodged with the Tribunal and that application was unsuccessful. He stated that he then made a request to the Minister of Home Affairs for Ministerial intervention and that request was unsuccessful. The Department’s Decision Record indicates that he lodged an application for review in relation to his Student visa application on 11 November 2013 and on 27 February 2014 the Tribunal affirmed the decision made by the Department. On 28 March 2014, he lodged a request for Ministerial intervention under s.351 of the Act and that request was unsuccessful on 26 August 2014.

17. The evidence before the Tribunal is that the applicant then lodged an application for a Protection visa on 5 December 2014 and his application was refused by the Department on 7 December 2015. He then lodged an application for review with the Tribunal on 13 January 2016. That application was lodged out of time and the Tribunal found that it had no jurisdiction on 7 November 2017. [In] March 2018, he was located by NSW Police during a routine roadside stop, identified as an unlawful non-citizen, taken to [a] Police Station where he was interviewed by an officer of the Department. He was then detained under s.189 of the Act and taken to the [Immigration Detention Facility] where he currently remains. On 3 April 2018, he lodged an application for judicial review with the Federal Circuit Court and that application is listed for an interlocutory hearing [in] July 2018.

18. The applicant’s evidence is that when he came to Australia in June 2013 on a Visitor visa he had between $4,000.00 and $5,000.00. He stated that he lived in [Suburb 1] with a friend named [name] from June 2013 to September 2013. He stated that he has lived in [Suburb 2] with another friend named [Mr B] and another person (whose name he could not remember) since October 2013. He stated that his friends have provided him with free accommodation and food since his arrival in Australia in June 2013 and he has not paid for rent, board or food whilst living here. He stated that his parents have also supported him by sending him money and clothes. He stated that he has never worked in Australia as he did not have permission to work here.

19. The applicant’s evidence is that some friends introduced him to a man named [Mr A] in 2014. He stated that [Mr A] referred him to his current migration agent. He stated that [Mr A] has been helping him financially by giving him between $50.00 and $150.00 per week and does not expect to be repaid. [Mr A] gave evidence that he is the holder of a subclass 485 visa that is valid for another year. He stated that he lives in [Suburb 3] with his wife and [several] children. He stated that he works full time as [Occupation 1]. He stated that he started working as [Occupation 2] two weeks ago. He stated that some friends introduced him to the applicant about 2 years ago. He stated that the applicant is a “needy person” and, as a humanitarian, he has been giving him between $50.00 and $100.00 per week and has also bought medicines for him. He stated that he is prepared to continue to assist him if he is granted a Bridging visa. 

20. The Tribunal asked the applicant what his current financial circumstances are and where he will live if granted a Bridging visa. He stated that he has about $300.00 or $400.00 in cash and has no debts. He stated that he will continue to live with his friend [Mr B] who will provide him with free accommodation and food. He stated that [Mr B] is in Australia on a Student visa. He stated that [Mr A] and his migration agent will also support him. When asked whether he owns any assets, he stated that he has no assets. When asked whether he has previously owned any assets, he responded that he owned a car in 2016 or 2017. He stated that he bought it for $1,800.00 or $2,000.00 and sold it in October or November 2017 for “something like $1,800.00”. He stated that his parents gave him the money to purchase the car.

21. This evidence is not consistent with the evidence he gave the Department. He was interviewed by the Department on 25 January 2018 and during that interview he stated that he had savings of $200.00 and a car worth between $7,000.00 and $8,000.00. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that the inconsistencies in his evidence raised concerns about his credibility and whether he would comply with the conditions of this visa. He responded that the car was not registered in his name and there must have been a miscommunication. He stated that the car belongs to [Mr A]. He stated that he was interview at about 1.00am, he was handcuffed, was referred to as an alien and was stressed. He stated that he had never been to a Police Station, was treated like a criminal, was stressed and messed up his statement.

22. The applicant gave evidence that he sold his car in 2017 and spent the money. When asked what he spent the money on, he responded that he bought some clothes and purchased a [smartphone] for $1,000.00. He stated that he has a mobile telephone account with [a telecommunications company]. The Tribunal is of the view that his conduct in purchasing a car and subsequently a mobile telephone for $1,000.00 is not consistent with his claims that he has not worked in Australia, has no income and has been reliant on his family and friends to support him for the last almost 5 years. When the Tribunal raised this as an issue with him, he responded that his parents gave him the money to buy the car in case he “might want to go around”. He stated that, after he sold the car, [Mr A] suggested that he buy a mobile telephone. He stated that he downloads ebooks in relation to business management on his mobile telephone and reads them. The Tribunal does not find this explanation to be convincing. 

23. The applicant gave evidence that, if he is granted a Bridging visa, he will continue to live with his friend [Mr B] who will provide him with free accommodation and food. [Mr B] did not attend the hearing nor was the Tribunal provided with any evidence from him to confirm that he has provided the applicant with free accommodation and food in the past and that he is willing and able to continue to do so. When the Tribunal raised this as an issue with him, he requested more time to provide this evidence. The Tribunal granted him further time to provide this evidence. The Tribunal did not receive any evidence from [Mr B] after the hearing.

24. The applicant gave evidence that he met that [Mr A] in 2014 and that he has been helping him financially by giving him between $50.00 and $150.00 per week. [Mr A] gave inconsistent evidence. He stated that he met the applicant 2 years ago and has been giving him between $50.00 and $100.00 per week. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that it raised the issue of where he got the money to manage financially for his living expenses, other than accommodation and food, prior to meeting [Mr A]. He responded that he has lost a lot of weight since coming to Australia and is very stressed. This response does not address the issue raised with him to alleviate the Tribunal’s concerns in relation to whether he has been working without permission in Australia.

25. Following the hearing, the Tribunal received a Statutory Declaration dated [in] May 2018 from [Mr A], copies of his lease, bank statement , pay slip from [Company 1] and pay slip from [Company 2]. He indicated in his Statutory Declaration that the applicant is able to live with him if granted a Bridging visa and that he will pay for his daily living expenses. He stated that he will ensure that the applicant complies with the conditions of the Bridging visa. He stated that he is prepared to be a guarantor and lodge a security bond of $10,000.00. His [Bank] account statement indicates that he has a balance of $10,095.27 as at [May] 2018. 

26. In considering whether the applicant would comply with the conditions imposed on the Bridging visa, the Tribunal has had regard to his immigration history including his previous breaches of immigration laws, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach and whether he has shown any contrition for his unlawful conduct. He has filed with the Tribunal a copy of the Department’s Decision Record dated 1 May 2018 which indicates that when his request for Ministerial intervention was unsuccessful his associated Bridging visa ceased and he became an unlawful non-citizen. He remained an unlawful non-citizen until he applied for a Protection visa almost 3 months later and was issued with an associated Bridging visa. 

27. The Department’s Decision Record dated 1 May 2018 indicates that when the applicant’s application for a Protection visa was refused by the Department and the Tribunal found that it had no jurisdiction in relation to his application for review, his associated Bridging visa ceased on 5 December 2017 and he thereafter remained in the community as an unlawful non-citizen. It indicates that he took no further action in relation to his immigration status. It indicates that only after he was located by NSW Police during a routine roadside stop, identified as an unlawful non-citizen and detained that he lodged an application for judicial review with the Federal Circuit Court [in] April 2018. The Tribunal raised as an issue with him his immigration history, its concerns that it indicated that he is a person who has no respect for Australia’s immigration laws and it concerns that he may not comply with the conditions of the Bridging visa if granted. He responded that he respects the law and does not want to breach it.

28. The applicant stated that his previous migration agent advised him that he had to wait until his Bridging visa expired before he could apply for Ministerial Intervention. He stated that he went to the Department the day after his Bridging visa expired and made a request for Ministerial intervention. He stated that when that was unsuccessful he instructed his current migration agent. He stated that his current migration agent messed up the dates and his application for review to the Tribunal was lodged one day out of time. He stated that he was not aware that he was here unlawfully. He stated that he continued to reside in the same address and was not in hiding. He stated that he did not want to breach the law.

29. The applicant’s migration agent submitted that the applicant was depressed and he should have been more proactive in following up with him. He stated that he miscalculated the timeframe within which the application for review, in relation to the application for a Protection visa, should have been lodged with the Tribunal and it was lodged one day out of time. The Tribunal accepts that the applicant relied on the advice given to him by his migration agents and that he may not have been well served by the migration agents he has instructed. However, it remains his responsibility to ensure that he resides in Australia lawfully.

30. The records of the Department indicate that the applicant was interviewed by the Department on 25 March 2018. During that interview, he stated that he wants to try and stay in Australia. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that it indicates a desire to remain in Australia and his immigration history indicates that this desire is so strong that he is even prepared to remain here unlawfully. The Tribunal noted that it raised concerns that, if his application to the Federal Circuit Court is unsuccessful, he may disappear into the community and fail to comply with the conditions of the Bridging visa. He responded that he relied on the advice given to him by his migration agents and was not aware he was here unlawfully. He stated that he will do whatever the Department tells him to do. He stated that if his application for judicial review is unsuccessful [in] July 2018 he will follow the law. He stated that it is his intention to study and he still wants to study.

31. The Tribunal has been provided with a Psychologist Report dated [in] April 2018 from [Ms C]. It indicates that she saw the applicant at the [Immigration Detention Facility] for approximately 90 minutes. It indicates that her assessment was based on the referral information (which was not provided to the Tribunal), psychometric assessments on post-traumatic stress, anxiety and depression that were completed and followed by a semi structured interview. It indicates that the psychometric assessments conducted were self-reporting and a self-administered questionnaire. [Ms C] summaries her diagnoses as follows:

    [Applicant’s] presentation is consistent with Post Traumatic Stress Disorder, Major Depressive Disorder and Generalised Anxiety Disorder. [Applicant’s] mental health is likely to improve significantly should he be released from the Immigration Detention Centre and allowed to reside in the community. [Applicant’s] future goals include pursuing a university degree and working within the [particular] profession in Australia. Ongoing support from a mental health professional is recommended to monitor and manage his symptoms.    

1. The Tribunal places limited weight on this Report. Firstly, [Ms C] has relied on referral information provided to her by the applicant’s migration [agent] and based her assessment, in part, on this information. The Tribunal has not been provided with a copy of the referral information provided to [Ms C] nor has this information been tested. Secondly, this Report was obtained for the purpose of supporting the applicant’s application for a Bridging visa and the assessment was based on self-reporting by the applicant. Thirdly, the Report was prepared based on one interview with the applicant.

2. The Tribunal has considered the submissions made by the applicant’s migration agent. His submissions mainly relate to the applicant’s claims for protection, why he is entitled to a Protection visa and why he cannot return to India. Whilst this is not relevant to the application before the Tribunal, it exacerbates the Tribunal’s concerns that he will not depart Australia if required to do so.  

3. Having considered all the evidence and the submissions, the Tribunal is not satisfied that the applicant will comply with the conditions of the Bridging visa. The Tribunal is not persuaded by the assurances given by the applicant that he will comply with the conditions of the visa. The Tribunal is not satisfied, on the evidence before it, that he has not worked in the past to support himself financially. The Tribunal has considered the evidence given by [Mr A], post hearing, that if the applicant is granted a Bridging visa, he can reside with him and that he will provide for his daily needs. It is of concern to the Tribunal that [Mr A] did not give this evidence in his original Statutory Declaration dated [in] May 2018 or in his evidence during the hearing. The Tribunal is not persuaded by the assurance given by [Mr A] that he will ensure that the applicant will comply with the conditions of the visa in view of the fact that the applicant was living in Australia unlawfully during part of the time that [Mr A] has known him.   

4. The applicant’s immigration history is of concern to the Tribunal and does not inspire any confidence that he will comply with visa conditions in the future. His immigration history, his past conduct, his evidence to the Department and the Tribunal and his instructions to [Ms C] indicate a strong desire to live, study and work in Australia.

5. The Tribunal has considered the evidence given by [Mr A] that he is prepared to be a guarantor and deposit a security bond of $10,000.00. The Tribunal is not satisfied that the applicant will comply with the conditions of the visa, regardless of any security that may be imposed.

6. The Tribunal notes that the applicant is able to access medical services at the [Immigration Detention Centre] in relation to his allergies and to psychologists and social workers in relation to his mental health.

7. On the evidence before it, 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.

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

9. 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

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

    Linda Symons
    Member