1817771 (Migration)

[2018] AATA 2402

1817771 (Migration) [2018] AATA 2402 (26 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1817771

MEMBER:Moira Brophy

DATE:26 June 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 26 June 2018 at 4:01pm

CATCHWORDS

Migration – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – Criminal history – Domestic Violence – Security bond – Significant breaches of immigration laws – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 189

Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.221, 050.223, 050.617, 050.618 Schedule 8, Conditions 8101, 8401, 8503, 8505, 8564

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
Chenv MIMIA [2001] FCA 285

Lin v MIMIA [2001] FCA 283

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in this case is whether the applicant satisfies the primary criterion for the grant of the visa. Specifically, he must meet one of the alternatives set out in cl.050.212 (2)-(9) at the time of application. He must continue to satisfy this criterion at the time of decision: cl.050.221.

   APPLICATION FOR REVIEW

2. 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).

3. The applicant is a national of Tonga. He most recently entered Australia on 6 October 2016 as the holder of a [temporary visa], which was valid to 23 April 2017. His visa was subject to a No Further Stay Order (8503).

4. On [date] May 2018, [State 1] Police arrested the applicant and charged him with criminal offences. Following his release from criminal custody, Department of Immigration and Border Protection (Department) officers transferred the applicant to [Detention Centre 1], where he is now located.

5. The applicant applied for the visa on 13 June 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).

6. The decision to refuse to grant the on the basis that the applicant was not able to satisfy the grounds as set out subclause 050.212(2) as the delegate was not satisfied the applicant had a genuine intention to depart Australia.

7. The applicant appeared before the Tribunal on 25 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the brother of the applicant [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tonga and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In this case, the applicant is seeking to meet cl.050.212 (2), that is he is making, or is the subject of, acceptable arrangements to leave Australia.  The applicant does not claim to meet any of the other alternative criteria in cl.050.212 although he has indicated that he and his partner intend to lodge an application for a Partner visa that is a substantive visa, in the future. The applicant has not made any application for a substantive visa, as of the date of his Bridging visa E application (13 June 2018), or the date of this decision.

11. For the reasons below, the applicant does meet cl.050.212.

    Acceptable arrangements to depart Australia

12. Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The Department’s Procedures Advice Manual 3 (PAM3), whilst not binding on the Tribunal, nevertheless provides some guidance: Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]).

13. The Tribunal finds that the applicant first arrived in Australia as the holder of a [temporary visa], which was valid to 23 April 2017. His visa was subject to a No Further Stay Order (8503). He remained in Australia unlawfully until located by the [State 1] police on [date] May 2018 when he was involved in a domestic violence incident and a subsequent assault on the arresting officer. The applicant remained in Australia unlawfully for a period of about 13 months. From his evidence the Tribunal is satisfied he knew he was here unlawfully. He indicated he wished to remain here to have a chance at a better life. The Tribunal is of the view he chose to remain here without a visa, to suit his own desired migration outcomes. The applicant now claims that he intends to depart Australia and that his brother has purchased a ticket for his departure. The evidence as to whether he had a valid passport and who held that passport was equivocal. In his form 1008 no details from his passport were provided. In that form he stated he wished to purchase a ticket to depart Australia on 14 July 2018 but his family were unable to do that because his passport was being detained. At the time he was taken into criminal custody he stated he had a passport, he did not know where it was but believed it was with his brother in[State 2]. At the time of hearing the applicant said his passport was being held by the department but a copy was given to his partner who gave it to his brother to enable him to book the ticket. In a statement dated 18 June 2018 [the partner, Ms B] stated she had still not been able to obtain passport details for the ticket to be booked. His brother told the Tribunal [Ms B] had in fact purchased the tickets and then emailed the confirmation to him. When the Tribunal asked for proof of payment by way of payment details there was no evidence available. On the evidence before it, the Tribunal accepts a reservation has been for the applicant to depart Australia on Tuesday 3 July 2018.

14. On the basis of these findings the Tribunal is satisfied the applicant was, at the time of application, making, or was the subject of, acceptable arrangements to depart. For these reasons, the Tribunal is satisfied that at the time of application the applicant was making, or was the subject of, acceptable arrangements to depart Australia. Therefore the applicant does meet cl.050.212(2).

15. 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.

16. 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].

17. 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.

18. The Tribunal considered [the applicant]’s evidence when assessing whether he would abide by the conditions of a bridging visa.

19. [The applicant] told the Tribunal that since 2017 he had been in a long term relationship with his partner [Ms B] and that they were planning to marry in the near future. He said he wanted to spend time with his partner. She had been visiting him while he was in detention. The Tribunal enquired whether the terms of the AVO were being breached by their continuing to spend time together. [The applicant] said that had been an unfortunate incident and they had put it behind them.

20. [The applicant] said his partner was employed full time in an insurance company and she had a stable income and was prepared to support them both. He said she was currently renting with another friend. [The applicant] said his brother had indicated he was also prepared to support him financially if he were to be granted a bridging visa. When asked why they had not lodged a partner visa application, given his evidence it was a long standing relationship, [the applicant] said they were saving the application fees and getting their evidence together.

21. [The applicant] said if he were to be granted a bridging visa he would be able to spend time with his brother’s children. While the Tribunal accepts the evidence of [the applicant] that he wishes to see and spend time with his partner and family the Tribunal was not persuaded this would act as a sufficient deterrent in assessing whether he would comply with any visa conditions.

22. In this case, cl.050.617 and cl.050.618 applies. 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;

    8401 – report as directed;

    8505 – reside at specified address; and

    8564 – must not engage in criminal conduct

23. The Tribunal considered [the applicant]'s circumstances. As previously noted [the applicant] was an unlawful non citizen from when his visa ceased on 23 April 2017. On 6 May 2018 [the applicant] was remanded in custody for domestic violence, assault and damage to property. He was released from criminal custody on 4 June 2018 and was detained under section 189(1). He was transferred to [Detention Centre 1].

24. The Tribunal finds that [the applicant] has shown little regard for Australian law and has remained in Australia unlawfully for an extended period after the cessation of his visa. The Tribunal finds that [the applicant] has made no attempt to regularise his immigration status.

25. [The applicant] gave evidence at the hearing that he will abide by any Bridging visa granted to them. [The applicant] said that he was sorry for what he had done and he was aware of Australian immigration law. [The applicant] said with the support of his partner and brother he would have accommodation and financial support.

26. The Tribunal is satisfied that [the applicant] was aware that he had remained in Australia unlawfully and that he actively sought to avoid contact with the Department so he could remain in Australia. Having regard to [the applicant]’s past conduct, the Tribunal is satisfied that he would again breach Australian law in the future if it suited his circumstances.

27. The Tribunal was mindful of his previous disregard for the requirements of Australian law, as exhibited by his decision to stay in Australia without a valid visa and accordingly the Tribunal is not satisfied that [the applicant] will abide by conditions 8101, 8401 and 8505.

28. Accordingly, having regard to [the applicant]’s past conduct and immigration histories, and for the reasons outlined above, the Tribunal does not accept that he will abide by the conditions of a Bridging visa if one is granted to him.

29. At the hearing [the applicant]’s brother indicated he would try to organise a security bond if needed. Having regard to [the applicant]’s immigration history, his criminal history since being in Australia and his failure to comply with his previous visa, the Tribunal is not satisfied that the amount of security suggested by [the applicant]’s brother of up to $2000 or any other amount would provide sufficient incentive for him to abide by the conditions of any Bridging visa granted to him.

30. 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.

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

    DECISION

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

    Moira Brophy
    Member