1815302 (Migration)

[2018] AATA 2517

1815302 (Migration) [2018] AATA 2517 (4 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1815302

MEMBER:Ann Duffield

DATE:4 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 04 June 2018 at 1:26pm

CATCHWORDS
Migration – Refusal – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Unlawful Non-Citizen – Failed to comply with visa conditions – Abide by future visa conditions– No evidence of his financial support to his family – Long history of non-compliance with bridging visa conditions– Decision under review affirmed

LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cl 050.223, Schedule 8

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 22 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 (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 24 May 2018 on the basis that the delegate was not satisfied that he would comply by any visa conditions placed on the visa if a visa was granted. The delegate formed that view because of the applicant’s previous non-compliance with previous visas granted and his history of unlawfulness in Australia.

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

5. The applicant was represented in relation to the review by his registered migration agent, who contributed to the scheduled hearing via telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant provided the Tribunal with a copy of the delegate’s decision along with his application for review.

8. The issue in this case is whether the applicant will comply with any conditions that may be placed on a bridging visa if it is granted.

   Whether the applicant will abide by conditions - cl.050.223

9. 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.

10. 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].

11. 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.

12. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    8101 – no work
    8207 – no study
    8401 – report as directed
    8506 – notify change  - of address

13. The Tribunal put to the applicant at the hearing that his migration history did not suggest that he would comply with the conditions placed on any visa he may be granted. The Tribunal put to the applicant that he had been unlawful for more than five of the ten years he had been in Australia on four separate occasions. The Tribunal put to the applicant that he had four separate opportunities to demonstrate that he was able to comply with visa conditions and on each of those occasions he failed to do so. The Tribunal put to the applicant that his submission was that he needed to be released from detention because his partner and children needed him and that his partner was suffering from post-natal depression. The Tribunal put to the applicant that it had no evidence before it, aside from the delegate’s decision, that any of these matters was corroborated by any documentary evidence. The Tribunal put to him that it had no evidence of financial support he claimed to have provided to his partner and their children.

14. The Tribunal put to him that his response to these matters was important as depending upon those responses; they would form a reason or part of the reason that the Tribunal would affirm the decision.

15. During the hearing and in subsequent documents provided after the hearing, the applicant provided the following information to support his application.

16. He and his partner lived together in a variety of states from the time they met and most recently went to [City 1] to live towards the end of 2014. In the past two years however he has resided for the most part in [State 2] as he claims that he was unable to find work in [State 1]. He claims that he is [an occupation] and does some [work]. The Tribunal put to him that he should be able to find that sort of work anywhere and he claimed that he could not. He said that he returned to [State 1] to see his partner and children every month or so and if he booked ahead the airfares were only around $200. He told the Tribunal that his partner does not work and she and the children rely entirely upon his earnings for financial support. The applicant said he worked around three days a week but did not provide any evidence of his work or his earnings or that he provided any financial support to his partner and children.

17. The Tribunal asked the applicant why he had not returned to China in the past and he claims that it was because his wife would be in danger if they returned. He was unable or unwilling to provide details of their joint protection claims. The Tribunal asked, if they had genuine fears for their safety, why they did not lodge an application prior to 2013. The applicant did not have an answer.

18. Asked how he intended to support himself and the children if he were released from detention and was not allowed to work the applicant told the Tribunal that his friend, Mr [A] had promised to support himself, his partner and their children. He said that he would return to [City 1] if he were released and come back to [State 2] in a couple of months with his family because his wife and youngest child were not able to travel. He provided no evidence that he had the funds to do so except by telling the Tribunal that he had some savings. He said his wife had post-natal depression. The Tribunal put to the applicant that he had not provided any medical evidence of his wife/partner’s condition or any evidence that his presence was necessary or desired for her well-being. After the hearing the applicant provided the Tribunal with a copy of a medical referral for a named person (his partner) for opinion and management for post-natal depression.

19. Also, after the hearing, the applicant provided the Tribunal with a phone bill, a pay slip and a statement from Mr [A]. Mr [A] stated that he was committed to support the applicant and his family in terms of finance, shelter and food. The Tribunal has not received any further evidence or documents or submissions supporting the proposition that Mr [A] has the capacity to support the applicant and his family, including for example bank statements, rental agreement or home ownership details and so on.

20. The Tribunal put to the applicant that it was having difficulty accepting, on the basis of his comments to the Tribunal’s concerns that he would abide by any visa conditions that may be placed on a bridging visa if he was granted one. The applicant told the Tribunal that he knew he had made mistakes in the past and only now realised the importance of abiding by his visa conditions and required on more chance. The Tribunal put to the applicant that he had four previous chances to show that he would abide by his visa conditions and he had demonstrably failed to do so.

21. The applicant told the Tribunal that his children and his partner needs him for emotional support and asked that the Tribunal place more weight on his family circumstances in coming to its decision.

22. The Tribunal has weighed the circumstances of the applicant both cumulatively and individually and is not satisfied that the applicant will abide by any visa conditions placed upon his bridging visa if he was granted one. The applicant’s current circumstances in relation to his partner and family living in [City 1] whilst he has lived in [State 2] do not demonstrate to the Tribunal that they are in any need of his physical presence either emotionally or financially. The applicant provided no evidence of his trips to [City 1] and no evidence of his financial support to his family. The Tribunal notes that the applicant’s partner has been referred to a medical specialist for symptoms of post-natal depression; however there is no suggestion that the applicant’s physical presence is necessary to the improvement of his wife’s symptoms, even if her condition is confirmed to be that of post-natal depression at some time in the future. The Tribunal is not satisfied that his family in [City 1] would suffer such hardship or difficulty such as to justify the granting of a visa to the applicant.

23. The applicant’s long history of non-compliance with bridging visa conditions and his expressions of remorse to the Tribunal for his poor immigration history does not give it any confidence at all that he will abide by them in the future. Equally, the Tribunal does not accept the evidence provided by the applicant and Mr [A] that the applicant and his family will be provided for financially by Mr [A] in the future. There is no evidence before the Tribunal, save a pay slip showing an annual gross salary of $66,560, that Mr [A] has the capacity to do so and even if he did, that the applicant and his family would remain dependent upon him for the time that they remain in Australia, without reverting to unlawful work.

24. The totality of the applicant’s migration history, his evident determination to remain in Australia at any cost, does not satisfy the Tribunal that the applicant will abide by conditions imposed on the visa if granted. Therefore the applicant does not meet cl.050.223.

25. Nor is the Tribunal satisfied, for the above reasons, that any amount of security imposed on the applicant would be sufficient to ensure compliance with visa conditions or justify the granting of a visa. The Tribunal notes parenthetically that the applicant did not offer to provide a security bond.

    CONCLUSION

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

27. 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

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

    Ann Duffield
    Senior Member