1816101 (Migration)

[2018] AATA 2702

1816101 (Migration) [2018] AATA 2702 (13 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1816101

MEMBER:Nicole Burns

DATE:13 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 13 June 2018 at 10:56am

CATCHWORDS

Migration – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – Whether the applicant will comply with future visa conditions – Criminal record – Inconsistent evidence – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73, 269

Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.221, 050.223, Schedule 8, Conditions 8101, 8207, 8401, 8505, 8564

CASES
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Applicant VAAN of 2001 v MIMA [2002] FCA 197

Tennakoon v MIMIA [2001] FCA 615

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 28 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 31 May 2018 on the basis that that the delegate was not satisfied the applicant would abide by relevant visa conditions.

4. The applicant appeared before the Tribunal on 8 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. He did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. At the Tribunal hearing the applicant confirmed his immigration history and other matters as set out in the delegate’s decision record, summarised as follows.

   ·The applicant first came to Australia on 1 February 2008 as the holder of a Student visa (subclass 573) as a dependent.  He was granted other Student visas as a dependent, the last one on 21 October 2014 (Subclass 572) which ceased on 15 July 2015. The applicant then became an unlawful non-citizen.

   ·On 28 February 2017 the applicant was located by [State 1] police and detained.

   ·The applicant’s application for a Partner visa (UK-820/BS-801) was found to be invalid on 25 May 2017.

   ·The applicant was granted a Criminal Justice Stay (CJS) visa (ZB-951) on 7 July 2017 and released from detention.

   ·On 31 January 2018 the applicant’s CJS visa was cancelled and the applicant became an unlawful non-citizen.

   ·On 17 March 2018 the applicant was located by [State 1] police and detained.

   ·On 28 March 2018 the applicant applied for a Bridging visa (WE-050) then withdrew the application.

   ·On 24 May 2018 the applicant’s application for a Protection visa (XA-866) was refused.

   ·The applicant sought a review of the decision to refuse to grant him the Protection visa with the Tribunal (differently constituted) on 24 May 2018, which is pending.

   Whether the applicant continues to satisfy the time of application criteria - cl.050.221

8. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision. On the basis of his oral evidence before the Tribunal, confirmed in Departmental and Tribunal records, the Department refused the applicant’s Protection visa application on 24 May 2018 and the applicant lodged a review of that decision with the Tribunal on the same day, which has not yet been finalised.  The Tribunal finds that at the time of decision, the applicant continues to satisfy cl.050.211 and 050.212 and therefore meets cl.050.221.

   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. As discussed at hearing, 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.

    ·8207 – The holder must not engage in studies or training.

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

    ·8505 – The holder must reside at a specified address.

    ·8564 – The holder must not engage in criminal conduct

13. At the Tribunal hearing the applicant said he would abide by the visa conditions if the visa is granted. He explained that he did not realise he was unlawful in the past because the first time (from 16 July 2015 until 28 February 2017) he was under the erroneous belief that he had a valid student visa, based on his advice from his then migration agent.  He only found out that was not the case when located by [State 1] police in February 2017, during a random traffic stop.  The second time he was unlawful was following the cancellation of his CJS visa on 31 January 2018 because the case he was a witness for did not proceed: however he claims no one told him and he only discovered this fact when he was located by [State 1] police a second time in March 2018. 

14. The Tribunal has carefully considered the applicant’s claims that he was not aware he was unlawful on two separate occasions in the past.  However there is no indication that the applicant raised these explanations before to the delegate as set out in the decision record (a copy of which the applicant provided to the Tribunal on review) or according to the compliance client interview notes on the Departmental file after the applicant was located by [State 1] Police in March 2018, which casts doubts on his claims in this respect.  The Tribunal also finds it odd that the applicant, who on the one hand told the Tribunal he was required to report to the police two to three times a week whilst holding the CJS visa, claims on the other hand that he was not informed that his visa had been cancelled.  With respect to earlier, the Tribunal notes this was a significant period of being unlawful of almost two years and finds it implausible that the applicant would believe he was granted a further student visa without his agent at the time sending him any evidence of such.  The Tribunal is not persuaded by the applicant’s explanation at hearing that whenever he asked his agent for the relevant paperwork she said she was not in her office or at a meeting.  It also notes the applicant failed to contact the Department at the time to confirm his visa status.  For these reasons the Tribunal does not accept the applicant was unaware he was unlawful on two separate occasions in the past and finds this is a significant factor that weighs against his claims that he will abide by future visa conditions. 

15. The applicant said if he is granted the bridging visa he will live with a friend – [Ms A] – and her husband (and son) in [Suburb 1].  [Ms A] has also agreed to financially support him while he awaits the outcome of his Protection visa application, as she did in the past when he held the CJS visa for almost a year, without work rights.  The applicant said he used to work for [Ms A] and her husband in their [business].  [Ms A] has provided a letter to the Tribunal confirming her wish to support the applicant with accommodation and financially, as well as a copy of a business bank statement indicating $28,000 is available.   

16. At hearing the applicant said he initially came to Australia in 2008 with his ex-wife and they are now divorced.  He has been in a relationship with a woman in Australia called [Ms B] for around five years whom he lived with in [Suburb 2] before his recent detention.  He applied for a Partner visa to remain in Australia on the basis of his relationship with [Ms B] in May 2017 however it was deemed invalid because it was lodged out of time.  The applicant indicated that he would prefer to live with [Ms B] if his bridging visa is granted in their rental apartment in [Suburb 2], as he has in the past, but also has the option to stay with [Ms A] and her family.  The applicant said [Ms B] works as a [occupation] in [City 1] and will also help him out financially, as she has in the past.  The Tribunal notes the applicant has not provided any supporting statements from [Ms B] to confirm that is the case. Nonetheless, it is willing to accept the applicant’s friend and girlfriend are willing to support him if released from detention.  However this does not overcome the concerns the Tribunal has with the applicant not abiding by future visa conditions as discussed above and below. 

17. At hearing the Tribunal asked the applicant if he has had any problems with the Australian authorities or any outstanding criminal matters in Australia.  He said in the past when he worked in a [company] he [provided] two or three vehicles to other men in his name and as a consequence lost all his demerit points (as a result of their parking or speeding fines, for example).  His license was suspended and he was fined $600.  The applicant provided a copy of his ‘[State 1] police criminal record[1]’ post hearing which indicates that he appeared at [City 1] Magistrates Court [in] September 2013 for charges of ‘drive whilst authorisation suspended’ and ‘fail to answer bail’ which resulted in a fine of $600. 

    [1] Dated 13 April 2018

18. The applicant said as well in March 2018 he was in a vehicle with friends, returning home from a market, when their vehicle – which was owned by a contractor – was randomly pulled over by police.  He was charged initially because of some ‘things’ found in the car which indicated involvement in drugs, however they belonged to the contractor and subsequently all charges have been dropped.  As evidence that the charges had been dropped the applicant provided his [criminal] record, issued on 13 April 2018, as set out above.  It is unclear to the Tribunal whether there are ongoing investigations involving the applicant for drug related charges or otherwise, however even if so, they are matters to be dealt with separately by the police and/or the courts.

19. Another concern the Tribunal has with the applicant’s case is the fact that, according to the delegate’s decision record, the applicant provided false names to police when pulled over in March 2018.  At hearing the applicant said he told them his actual name; however he acknowledged that he had his housemate’s identity cards in his pocket at the time.  He did not explain why.  The applicant’s provision of false names to police initially casts serious doubt on whether he would abide by relevant future visa conditions imposed on a bridging visa. These would include conditions requiring him to report as directed and reside at a specified address. 

20. The delegate was also concerned the applicant would not abide by future visa conditions because of inconsistent information provided to the Department.  The Tribunal discussed these concerns at hearing, including the fact that in around March 2018 he indicated to the Department that he wished to be removed and could return to India however subsequently – on 24 April 2018 - he lodged a Protection visa application on the basis that it is unsafe for him to return to India.  The applicant explained the reason he changed his mind is because of events which have transpired in his home country since March 2017.  However this does not explain why he told the Department that he wanted to return to India as recently as March 2018.  Other inconsistencies (as set out in the delegate’s decision record) include that in his Protection visa application the applicant states, among other things, that he has no personal contacts in Australia however he told the Tribunal that he has a de facto partner in Australia and a close friend – [Ms A] – who is willing to support him if released from detention. 

21. For these reasons, and having regard to the totality of the evidence before it, the Tribunal is not satisfied that the applicant would comply with the above conditions of his bridging visa.   

22. Having regard to the above, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted without the added incentive of a security. In accordance with the approach set down in in Tennakoon v MIMIA [2001] FCA 615 (Gray J) and Applicant VAAN of 2001 v MIMA [2002] FCA 197 (Finkelstein J), the Tribunal has therefore proceeded to consider whether the conditions would be complied with if a security is taken.

23. In the present case there is not a decision made under s.269 of the Act before the Tribunal to review and therefore the Tribunal does not have the power to require a security pursuant to s.269 of the Act. Nonetheless, the Tribunal has considered whether or not it considers if the applicant will comply with conditions, should a security be required of a particular amount. However, having regard to its concerns as set out earlier, particularly in relation to the applicant’s poor immigration history, the Tribunal considers that no amount of security would ensure the applicant’s compliance with the conditions which would be imposed on his visa.

24. Having regard to the above, 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.

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

26. 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

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

    Nicole Burns
    Member