1814191 (Migration)

[2018] AATA 2379

1814191 (Migration) [2018] AATA 2379 (25 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814191

MEMBER:Robert Wilson

DATE:25 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 25 May 2018 at 10:21am

CATCHWORDS

Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Whether the applicant will abide by visa conditions – Unlawful non-citizen – Breach of no work condition – Applicant did not advise Department of residential address – Likelihood of departing Australia by specified date – Friend willing to act as surety/guarantor – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 73, 116, 189, 269

Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.221, 050.223, 050.613A, 051.211

CASES
Applicant 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).

2. The applicant, age [age], applied for the visa on 10 May 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 1994 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.223.

3. The decision by the Department to refuse to grant the visa to the applicant and the decision relating to requiring a security was made on 14 May 2018. The applicant appeared before the Tribunal on 22 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr [A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Tamil Nadu) 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 decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

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

   The grounds for seeking the visa – cl.050.212

8. 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: cl.050.221.

9. In this case, the applicant is seeking to meet cl.050.212(3). For the reasons below, the applicant meets cl.050.212.

   Substantive visa application

10. Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

11. At the time of application the applicant was the subject of a substantive visa application, a protection visa, that had not been finally determined: an interview has been booked with the Department on 24 May 2018.

12. ‘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.

13. Accordingly, the applicant meets cl.050.212(3).

    Whether the applicant will abide by conditions – cl.050.223

14. The applicant came to Australia on 2 March 2018 as the holder of an Electronic Travel Authority (ETA) and he has not departed since. His ETA allows him to remain in Australia for three months.

15. [In] April 2018, the applicant was located working in breach of his ETA by Australia Border Force (ABF) officers. His ETA was cancelled under section 116 of the Act. As a result he became an Unlawful Non-Citizen (UNC). He is currently in [a Detention Centre] where he remains.

16. The applicant gave evidence at the hearing, stating that he has a [child] aged [age] who lives with the applicant’s mother in Malaysia. The applicant’s wife is living alone but she visits the [child].

17. [In] April 2018 he signed a Request for Removal from Australia Form where he indicated that he wished to be removed from Australia in accordance with the Act. He later withdrew this request [in] May 2018. The representative indicated that the applicant was apprehended while working. He was scared here. He rang his mother and she said it was not appropriate to return. He thinks he will be ill-treated or flogged if he returns to Malaysia. She asked him not to come to Malaysia as there is a problem to his life: the government. He said the leader broke the law to take people and they would be in danger. He supported a [party]. He acted in a demonstration and in Malaysia you can be arrested without trial. The applicant told the Tribunal that when there was no threat to him, he would be able to go to Malaysia. He will not agree to a voluntary return/removal. He does not have any assets in Australia other than [amount] Malaysian dollars.

18. 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 are set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject.

19. The Tribunal finds that the following conditions are imposed: 8101 (No Work), 8505 (Reside at Specified Address), 8506 (Advise The Department Of Change Of Address Within Two Business Working Days) and 8512 (Depart Australia By a Specified Date).

20. The applicant’s representative stated at the Tribunal hearing that the applicant was apprehended while working in Australia. In the Notice of intention to consider cancelling a visa, the officer wrote on 29 April 2018 that, ‘[In] April 2018, during a [Field Operations] visit the applicant was located working at ‘[a location].’ During questioning the applicant admitted the following: he knew he could not work; his duties are to clean mirrors and sweep the floor; he has been working at the business for two days; he is paid $[amount] per hour; ABF officers sighted him working in the business and wearing the uniform. An officer further noted that the applicant stated that he came to Australia as a tourist but after some time here he found that he liked Australia and wanted to stay here. He said he was running out of money to live on. The Tribunal finds that the applicant was working when he was not allowed to work in the circumstances under his visa.

21. The applicant is an UNC and is subject to the mandatory detention provisions in s.189 of the Act. This was explained by the applicant in that he has applied for a protection visa: The Tribunal makes a finding that condition 8512 is imposed.

22. The Tribunal is not satisfied that the applicant would abide by condition 8101 (No Work; which is mandatory).

23. At the Tribunal hearing the applicant repeatedly stated that he did not know the full address of where he was staying. He could only say [the suburb]. The Tribunal is not satisfied by this answer and finds that the applicant is not a credible witness. Further, information provided by the Department is that the applicant has not advised the Department of his address even though he claims to have applied for a bridging visa. He was unable to provide his address. In the circumstances the Tribunal cannot be satisfied that the applicant would abide by condition 8506 (Advise the Department of Change of Address Within Two Business Working Days). Further, the Tribunal is not satisfied that the applicant would meet condition 8505 (Reside at Specified Address).

24. Furthermore, the applicant’s return air ticket has expired and he has not made any attempt to purchase another ticket. As a result, the Tribunal is not satisfied that he would abide by condition 8512 (Depart Australia by a Specified Date).

25. 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 (2002) 70 ALD 289 at [15]–[16] (VAAN).

26. 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.

27. On 21 May 2018, Mr [A] declared in his statutory [declaration] that he is a citizen of Australia and he attached a photocopy of part of his Australian passport. He also provided a copy of his tenancy agreement for the place he lives [at]. He stated that he knows the applicant, through common friends. They both speak the same language, Tamil, as he is also of Tamil ethnicity and they have similar cultural practices. Further he knows the applicant is in detention as he met him in [the] Detention Centre on a few occasions in the past few weeks.

28. Mr [A] stated in his statutory declaration that he is willing to act as a surety/guarantor for the conduct of the applicant in abiding by the visa conditions if he is granted a bridging visa and let out to stay in the community. At the Tribunal hearing Mr [A] was asked what sum he would be able to provide as a security for the applicant. He said $5,000.

29. Mr [A] wrote that he will provide the applicant with accommodation, being a room in his house, food, clothing and other needs, including the use of a telephone which the applicant can use to ring his family during the bridging visa period till he departs Australia. If needed, he will provide a signed bond for any reasonable amount as the Tribunal may deem fit in the circumstances of the case.

30. Mr [A] wrote that he operates a few businesses and a copy of his bank statement is attached. The ANZ Merchant Statement, for the month of February 2018 showed that he had net sales of $8,504. The trading address is [Address]. Another document, ‘Merchant Statement Tax Invoice’, listed the number of sales, amount of sales, number of returns (nil), and the net amount of $1,732.

31. In response to the Tribunal’s questions, Mr [A] responded that the applicant is a friend and he gives him food. He is helping three boys. The applicant knows them all. He indicated that he knows he will not get his security back if the applicant breaches the conditions.

32. At the hearing the Tribunal asked whether the applicant had made, or whether he was the subject of, acceptable arrangements to depart Australia. Both the applicant and the representative replied that they have not made any arrangements as his protection visa is pending.

33. 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].

34. In this case, cl.050.613A applies because the applicant has applied for a protection visa and he is not a class of persons specified by the Minister in the relevant instrument. 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: 8101(No Work), 8505 (Reside at Specified Address), 8506 (Advise The Department Of Change Of Address Within Two Business Working Days) and 8512 (Depart Australia By a Specified Date).

35. However, having regard to the evidence regarding the applicant, the Tribunal is not satisfied that the applicant will comply with the following conditions, regardless of any security that may be imposed: 8101 (No Work), 8505 (Reside at Specified Address), 8506 (Advise The Department Of Change Of Address Within Two Business Working Days) and 8512 (Depart Australia By a Specified Date). Clause 050.223 is not met.

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.

    CONCLUDING PARAGRAPHS

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

    DECISION

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

    Robert Wilson
    Member