1812700 (Migration)

[2018] AATA 1960

1812700 (Migration) [2018] AATA 1960 (14 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1812700

MEMBER:Ann Duffield

DATE:14 May 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 14 May 2018 at 8:09am

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Whether the applicant would abide by conditions of visa – Historical noncompliance with visa conditions – Applicant unlikely to comply with conditions of visa – Security bond insufficient to ensure compliance

Migration – Bridging E (Class WE) visa – Subclass 051 (Bridging (Protection Visa Applicant) – Applicant is not a relevant eligible non-citizen

LEGISLATION
Migration Act 1958 (Cth), ss 73, 376
Migration Regulations 1994 (Cth), Schedule 2, Div 050.6, cl 050.223, Schedule 8, Conditions 8207, 8401, 8505, 8506, 8564

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 30 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 2 May 2018 on the basis that the delegate was not satisfied that the applicant would abide by any conditions that may be placed on any visa that may be granted and that no amount of security would be sufficient to ensure compliance with the conditions if the visa was granted.

4. The applicant appeared before the Tribunal on 11 May 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by her registered migration agent who also attended the hearing.

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

   BACKGROUND

7. The applicant is a citizen of Vietnam born on [a particular date] ([age]). She first arrived in Australia as a dependent applicant on her husband’s [permanent] visa. That visa was cancelled [in] June 2016 because the department found that information that formed the basis for the grant of that visa was false. The applicant and her family were sent the notice of that cancellation on that day. The applicant subsequently became an unlawful non-citizen until she came to the attention of the Department of Home Affairs [in] February 2018 when she was questioned by Queensland Police about a traffic incident.

8. On 19 March the applicant applied for a bridging visa E on the basis that she would purchase a ticket to depart Australia. This was refused on 21 March 2018 as the applicant admitted that she would not depart. The applicant, her husband and son have all subsequently applied for protection visas.

9. The applicant lodged the application subject to this review on 30 April 2018.

10. The applicant provided the Tribunal with the following documents on the day of the scheduled hearing:

    a.Form 956 appointing a new agent

    b.Submission from the applicant’s representative

11. At the commencement of the hearing the Tribunal informed the applicant that there was a s.376 certificate covering some information that the Tribunal has a discretion to disclose. The Tribunal put to the applicant that any relevant information contained in that document had been set out in the delegate’s decision and was not information adverse to her application. The Tribunal nonetheless made the information available to the applicant’s adviser who indicated that they had no response.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant would abide the conditions of a bridging visa, should one be granted and further whether the imposition of a bond would be sufficient incentive to ensure the applicant complied with the conditions, if any, placed on any visa granted.

    Whether the applicant will abide by conditions - cl.050.223

13. 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.

14. 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].

15. 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.

16. In the present case, condition 8101 – no work, is a mandatory condition. The delegate also considered that the following conditions should be imposed on any visa that may be granted given the circumstances of this case:

    8207 – no study

    8401 – report as directed

    8505 – live at a specified address

    8506 -  notify change of address

    8564 – must not engage in criminal conduct.

17. The delegate formed a view that the applicant would not abide by those conditions on the basis of her past behavior.

18. The delegate found that that she had been working unlawfully in Australia for several years as a cleaner in her cousin’s [business]

19. The delegate found evidence of collusion with other family members and hence formed a view that the granting of a BVE to the applicant would pose a significant risk to the integrity of Australia’s immigration program. The delegate was not satisfied that she would report at a time or place because she had previously had no contact with the department of immigration, nor did she depart Australia when her previous visa was cancelled, nor did she attempt to regularize her status at any time.

20. The delegate was not satisfied that the applicant would abide by condition 8506 which requires that she notify the department of any change of address. The applicant has a history of evading the department and has not informed them of her whereabouts in the past and the delegate was not satisfied that she would be motivated to do so in the future.

21. The delegate turned his mind to whether or not a security bond would be sufficient to ensure your compliance and formed a view that there would not.

22. The Tribunal put these matters to the applicant informing her that, depending upon her response, the Tribunal may also form a similar view and hence affirm the decision under review.

23. The applicant’s evidence was on the whole uninformative and frequently evasive. She claimed not to have known on what type of visa she and her family entered Australia, whether there were any conditions on it or that her husband’s visa had been cancelled. She was also unable to tell the Tribunal what visas her husband and son were currently on or applying for. She said that she did not know what visa she had applied for as these were matters for her husband and her lawyer.

24. The Tribunal put to the applicant that her lack of concern and knowledge about her visa status, and that of her family, did not lend much weight to her claims that she would abide by any visa conditions imposed on the bridging visa she was applying for. The applicant said that she would comply with all conditions. She said to the Tribunal that if she had known she was unlawful she would not have been out and about but would have gone into hiding. The Tribunal put to the applicant that such an attitude did not give it great confidence that she would abide by the conditions of her visa if one was granted. The applicant said that she was only pointing out that if she had known she was unlawful she would not have put herself in a position where she would be discovered.

25. Asked when she informed her husband that their visa had been cancelled and that she was detained, the applicant told the Tribunal that she did not tell her husband that their visas had been cancelled for three days. Asked why she didn’t call her husband for such a long time the applicant said that she was scared and stressed. Asked how long after that her husband and son went to the department to regularise their status she said it was another three weeks before he contacted the department. The Tribunal put to her that this information was adverse to her application and did not give the Tribunal any confidence that the family unit would comply with their visa conditions when they took so long to approach the department.

26. The Tribunal put to the applicant that it found her account difficult to believe. The Tribunal put to the applicant a copy of a Form 956 signed by her husband on 15 June 2015 appointing an agent to assist him in relation to the cancellation of his [permanent] visa. The Tribunal put to the applicant that this form was evidence that her husband knew that their visas had been cancelled and knowing that, the Tribunal found it hard to accept that he would not have told her. The applicant vehemently denied knowing anything about the visa cancellation or the appointment of an agent at that time.

27. The applicant’s adviser provided the Tribunal with a copy of his appointment as the applicant’s representative showing the applicant’s husband’s signature. The Tribunal noted that they were quite different. The applicant’s adviser suggested that it may not have been the applicant’s husband that signed the form. He said that the applicant and her family had been subject to an immigration scam that was uncovered at the time. He provided the Tribunal with newspaper articles of the matter but the applicant and her husband were not named and in any case, the article suggested that applicants had paid an immigration officer large sums of money to get visas to which they were not otherwise entitled. The Tribunal put to the parties that this was not particularly helpful to their case as it indicated that they were complicit with the scam.

28. The Tribunal asked the applicant if she and her family were living together and she affirmed that she and her husband and husband lived together with their son. She said that if she was granted a bridging visa they would all go and live with her mother and sister until their protection applications were decided. She said that her sister and brother in law had high incomes and would be able to look after all of them. The applicant did not provide any evidence to support this claim, including bank statements or statutory declarations from her sister, for example.

29. The Tribunal put to the applicant that the evidence she had provided did not strongly support her release on a bridging visa or a finding that she would abide by her conditions. The applicant said that she didn’t know that she was unlawful at the time she was working and going about her business as a normal person. She said that now that she understood these conditions she would abide by them.

30. The Tribunal asked if the applicant if she would be able to put up a security bond and she said that her sister and brother-in-law would be able to. She said that they were all very distressed that she was in detention and had been there for about two months already. The applicant’s adviser told the Tribunal that they were being interviewed in respect to the protection visa applications on 17 May 2018 so the matter should be resolved quickly. The adviser claimed that the applicants would depart Australia should their claims be rejected.

31. The Tribunal has considered all the evidence before it very carefully. However, on balance, the Tribunal does not accept that the applicant would abide by any conditions placed on a bridging visa should it be granted for the following reasons.

32. The Tribunal does not accept that the applicant and her husband did not know that their visas had been cancelled. The Tribunal does not accept that an agent with the reputation of [the applicant’s former representative] would not have forwarded a copy of the visa cancellation notification to the applicants when he received it from the department on [a particular date in] June 2015. The Tribunal does not accept that the applicant was not knowingly working when she knew she had no rights to work. Despite being told by the applicant that his visa had been cancelled, the applicant’s husband took a further three weeks before approaching the department. Even now, it is unclear why he has also not been detained in relation to his, and their son’s, current unlawful status.

33. The applicant’s evidence is that she feels very strongly about remaining in Australia, so strongly that she has attempted to evade all responsibility for either keeping herself informed about her visa status, or resolving it when she knew she was unlawful. On her application for a previous bridging visa that she sought to enable her to make departure arrangements, she was refused because she subsequently said that she would not leave. This indicates to the Tribunal that she is strongly motivated to remain and unlikely to comply with any conditions put on her visa. She has an extended network of family and friends upon whom she and her husband and son have relied since arriving in Australia. The Tribunal finds it difficult to accept fact that none of the applicant’s extended network took any interest in knowing about her visa status, especially when the applicant and her husband were complicit in an immigration fraud, and would not have either provided her advice about resolving her status or, at worst, assisted her in her evasion.

34. The Tribunal has carefully considered whether a security bond of $50,000 would ensure that the applicant complied with her visa conditions should she be granted one and has formed a view, for the reasons above, that no amount of security would assist her comply with any visa conditions.

35. The applicant’s adviser told the Tribunal that her husband and son were in the process of applying for a bridging visa in relation to a protection claim that the family had made. The Tribunal asked why they were not also detained and he was unaware of the reasons why.

36. 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.

    CONCLUSION

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

38. 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

39. The Tribunal affirms the decision under review.

    Ann Duffield
    Senior Member