1814886 (Migration)

[2018] AATA 2382

1814886 (Migration) [2018] AATA 2382 (1 June 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814886

MEMBER:Helena Claringbold

DATE OF DECISION:  1 June 2018

DATE CORRIGENDUM

SIGNED:26 June 2018

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The Date of Decision ‘1 June 2016’ at page number 1 of Decision record should be replaced with ‘1 June 2018’.

Helena Claringbold
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814886

MEMBER:Helena Claringbold

DATE:1 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 01 June 2018 at 9:07am

CATCHWORDS

Migration – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – Lived unlawfully for over 6 years – Breached visa condition by working – Compliance with visa conditions – Uncle offered payment of security – Disregard for immigration laws – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 269

Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.221, 050.223, 050.613A, Schedule 8, Visa Conditions 8101, 8401

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. On 18 May 2018, [the] applicant, applied for a Bridging E (Class WE) visa. The application was made on the grounds that the applicant has applied for a substantive visa that has not been finally determined.

2. On 22 May 2018 a delegate of the Minister of Home Affairs and an authorised officer relating to requiring a security under s.269 of the Migration Act 1959 (the Act) refused to grant the visa. The delegate was not satisfied that the applicant would abide by visa conditions and therefore the applicant did not satisfy cl.050.223 of Schedule 2 to the Migration Regulations (the Regulations) made under the Migration Act 1958 (the Act). This is a review of the delegate’s decision.

3. At the time of application, Class WE contained two subclasses: Subclasses 050 and Subclass 051. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa.

4. On 29 May 2018, the applicant appeared before the Tribunal to give evidence and present arguments.  He provided the Tribunal with a copy of the delegate’s decision record. The Tribunal hearing was assisted by an interpreter in the Mandarin and English languages. 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 Tribunal has taken into consideration all the evidence in the Tribunal case file and the  evidence given at the Tribunal hearings.

   ISSUE

7. The issue in this matter is whether the applicant will abide by visa conditions and meet cl.050.223 of Schedule 2 to the Regulations.

   Does the applicant satisfy 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) of Schedule 2 to the Regulations. The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.

9. On 17 May 2018, the applicant lodged a valid application for a permanent protection visa. The Tribunal is satisfied that the applicant has applied for a substantive visa and therefore meets cl.050.212(3) of Schedule 2 to the Regulations.

   Whether the applicant will abide by conditions - cl.050.223

10. Clause 050.223 of Schedule 2 to the Regulations 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 the visa. 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.

11. 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].

    Will the applicant abide by conditions if a bridging visa is granted?

12. Clause 050.613A prescribes that certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

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

    ·8401 The holder must report as directed -  (a) at a time or times; and (b) at a place; specified by the Minister for the purpose.

    ·8506 The holder must notify a change of address. and

    ·8564 The holder must not engage in criminal conduct.

    CLAIMS AND FINDINGS

13. As recorded in the delegate’s decision record and in requesting the grant of the visa, both prior to and at the Tribunal hearing, the applicant provided the following information.

14. The applicant told the Tribunal that prior to him entering Australia he and his wife argued, about their son who has [health] problems.  He said he wanted to travel overseas and chose Australia. On 29 February 2012, the applicant entered Australia as the holder of a Tourist visa with conditions including condition 8101, requiring no work.  The tourist visa ceased on 12 May 2012. When he entered Australia the applicant was accompanied by his wife [Ms A] with a date of birth of [date]. From their arrival in Australia the applicant and [Ms A] lived in a rented room in [Suburb 1].  In 2016, [Ms A] returned to China to tend to the parties son, who had been living with the applicant’s parents. The applicant then moved from the [Suburb 1] address and subsequently lived at addresses in [other areas].

15. On 14 May 2018, the applicant was stopped by NSW police.  After relevant investigation, it was determined that the applicant had been unlawfully in Australia for more than six years. The applicant was transferred to [an] Immigration Detention Facility [where] he currently resides. On 17 May 2018, the applicant lodged a valid application for a permanent protection visa.

16. On 21 May 2018, during an interview with the Department and as recorded in the delegate’s decision, the applicant stated that he didn’t think of renewing his visa. He didn’t know he could apply for a protection visa and this is why it took him so long to lodge the protection visa application.  He cannot go back to China as he fears for his life. He does not know what he would do if he receives a negative outcome with the protection visa application. The applicant admitted to have been working in the community. When asked why he overstayed the visa, the applicant stated: ‘For myself there are many excuses, to simply put it, just for the money’. The applicant also stated that he has a wife and child in China.

17. The Department received details and a bank statement of [Mr B], the applicant’s uncle and a proposed guarantor in support of the applicant’s application.

18. The Tribunal determined that the applicant remained in Australia unlawfully for more than six years.  During that time he made no attempt to regularise his status.  The applicant told the Tribunal that he had not worked in Australia.  He went onto say that he worked in Australia to help friends who were paid for the work, but he was not paid in cash. The Tribunal drew the applicant’s attention to his previous evidence, as recorded in the delegate’s decision record that, he didn’t depart Australia ‘for the money’ and that he had worked unlawfully in Australia for a long time.  He stated that the statement didn’t mean he needed money in Australia and ‘I don’t know’ and maybe at that time he didn’t know what to say.  He told the Tribunal he does not need money because up until the time his wife left in 2016, his family had sent him $10,000 and when his wife left his uncle gave him money. The Tribunal asked the applicant how much rent the applicant and his wife paid at the [Suburb 1] address and he said $230 per week. The Tribunal asked the applicant about his financial assets and he said he has $500 in the bank and an apartment in China and previously owned a restaurant in Shanghai. The applicant provided inconsistent information about working in Australia; on the one hand he stated that he didn’t depart Australia ‘for the money’ and that he had worked unlawfully in Australia for a long time and on the other hand he told the Tribunal that, for the last three years, he worked for friends as a [occupation] without payment other than being provided with clothing and alcohol. The Tribunal is of the view that the applicant has shown blatant disregard for Australian immigration laws. It is not satisfied that if the applicant were released into the community he would not engage in work because on the evidence he has been working in Australia for at least three years. The Tribunal is not satisfied that if the applicant were released into the community that he would abide by condition 8101.

19. Since his arrival in Australia, the applicant has displayed the capacity to disregard Australia’s legal requirement of being in Australia as a lawful person.  For more than six years he has lived in Australia without a visa and worked for at least three of those years unlawfully. At no time during those six years has he approached the Department or made an effort to legalise his status.  At no time has he advised the Department of any of his addresses.  Rather, he has lived in Australia without legal permission. The applicant told the Tribunal that he does not speak English and ‘didn’t understand this stuff’ and it didn’t come to his mind. The Tribunal is of the view that, even without speaking English, the applicant could not have been under any misapprehension about his status in Australia. The Tribunal does not accept that the applicant did not understand the requirement that he hold a valid visa to remain lawfully in Australia. Before he entered Australia, the applicant understood that he was required to have a valid visa to enter Australia and he went through the procedure of applying for and being granted a tourist visa and then entered Australia as the holder of that visa.  The Tribunal is of the view, that the applicant didn’t approach the relevant authorities, to regularise his status or provide his addresses, because he wanted to remain in Australia, regardless of visa requirements.  He told the Tribunal that he thinks the environment and everything in Australia is better.  He said he didn’t return to China with his wife in 2016, because he just wanted to remain in Australia.  He said by that time, he had been in Australia for three years and had friends and an uncle here and didn’t want to return to China. The Tribunal is of the view that had the applicant not been stopped by NSW police he would have continued to remain in the community unlawfully. The Tribunal believes that if the applicant were released in the community and the protection visa application is refused, that the applicant would immerse himself in the community, regardless of his visa status. The Tribunal is not satisfied that if the applicant were released into the community that he would abide by condition 8401.

20. The Tribunal considered the evidence individually and as a whole. The Tribunal is not satisfied that if granted a bridging visa the applicant would not engage in work or that he would report as directed, or that he would abide by conditions 8101 and 8401. In coming to this decision the Tribunal considered the evidence and notes that the applicant was willing to remain and unlawfully in Australia for more than six years and work for at least three of those years.  As the Tribunal determined that the applicant would not comply with conditions 8101 and 8401 it has not gone on to consider the other conditions for the grant of the visa.

21. The Tribunal deliberated on whether the payment of a security would assist it to be satisfied that the applicant would abide by the conditions on the visa if granted. After considering the length of time the applicant remained in Australia unlawfully and his record of working in Australia, the Tribunal is not satisfied that even if a substantial security was available, that the applicant would abide by the conditions on the visa. The Tribunal finds, therefore, that the applicant does not meet cl.050.223 of Schedule 2 to the Regulations.

22. There is no evidence before the Tribunal that the applicant satisfies any of the alternate subclauses.

23. 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.

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

25. 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

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

    Helena Claringbold
    Member