1818478 (Migration)

[2018] AATA 3693

1818478 (Migration) [2018] AATA 3693 (4 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1818478

MEMBER:Paul Windsor

DATE:4 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

·cl.050.223 of Schedule 2 to the Regulations; and

The Tribunal also directs the primary decision maker

·to indicate to the applicant that conditions 8101, 8401, 8506 and 8564 will be imposed if the visa is granted; and

·to require a security of $20,000 for compliance with the conditions.

Statement made on 04 July 2018 at 10:24am

CATCHWORDS

Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Unlawful Non-Citizen – Criminal offences – Failed to comply with previous visa conditions – Whether the applicant would abide by conditions imposed if visa granted – Applicant would comply with conditions if a security was obtained from family members – Decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), ss 73, 269
Migration Regulations 1994 (Cth), Schedule 2, cls 050.223, 050.212, 050.613A, Schedule 8, Condition 8101

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (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) and a decision made by an authorised officer relating to requiring a security under s.269 of the Act. The applicant provided the Tribunal with a copy of the delegate’s decision record.

2. The applicant applied for the visa on 20 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). Relevantly to this matter, the primary criteria include cl.050.223 which requires that the delegate be satisfied that, if a bridging visa is granted, the applicant will abide by the conditions imposed on it.

3. The decision to refuse to grant the visa and the decision relating to requiring a security was made on 22 June 2018 on the basis that the delegate was not satisfied that the applicant would abide by the conditions that would be imposed on the bridging visa without the imposition of a security.  The delegate indicates in her decision record that the applicant was asked whether he could pay a security if one was imposed and replied that he was ‘entirely reliant on his sisters financially and would not be able to self-fund’ a security.  The delegate indicates that she attempted to contact the applicant’s sisters (who reside overseas) to verify their ability to provide a security on the applicant’s behalf, but was unable to and therefore no security was requested.

4. The applicant appeared before the Tribunal on 29 June 2018 to give evidence and present arguments.  The Tribunal also received oral evidence by telephone from two of the applicant’s sisters residing in [Country 1] and [Country 2] (a third sister residing in [Country 1] did not answer her phone when the Tribunal attempted to contact her during the hearing). The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative participated in the Tribunal hearing via telephone link.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In this case the delegate and the Tribunal both find that the applicant satisfies the time of application criteria set out in cl.050.212 because he has applied for a substantive visa that has not been finally determined (cl.050.212(3).  The issue in this case is whether the applicant would abide by conditions imposed on a bridging visa if granted to him.

   Whether the applicant will abide by conditions - cl.050.223

8. 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.

9. 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].

10. 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].

11. In considering the security decision, the amount of security should be a sum that is designed to secure compliance with the relevant conditions, having regard to the conditions that must be complied with, and the particular circumstances of the person bound by the requirements, notably their financial position: VAAN at [27].

12. In this case, cl.050.613A applies because the applicant has applied for a Protection visa and is not in a class of persons specified by the minister by instrument in writing for this paragraph.  This clause prescribes that condition 8101 (no work) must be imposed.  In addition to this mandatory condition, this clause prescribes certain other conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    8101The holder must not engage in work in Australia. (Mandatory)

    8401The holder must report:

    (a)at a time or times; and

    (b) at a place;

    specified by the Minister for the purpose.

    8506    The holder must notify Immigration at least 2 working days in advance of any   change in the holder’s address.

    8564   The holder must not engage in criminal conduct.

13. From the information in the delegate’s decision record and information provided by the applicant at the hearing, it is clear that the applicant first arrived in Australia on 3 June 2013 on a Class TU, subclass 573 student visa, which was valid until 30 August 2016.  The applicant indicated that his then wife joined him in Australia as a dependant in September 2013.  He indicated that they divorced in July 2017 but stated that he was living with her and their child at an address in [Victoria] before he was detained in November 2017.

14. The applicant indicted that when he came to Australia he was planning to undertake a [Degree] after completing [an English] language course.  He indicated, however, that he was not able to complete his English language course and therefore was unable to commence the [degree] course.  The applicant commented that he did not do very well in the English language course and while he attended for a total of about seven months over a 12 month period, was unable to progress to the required ‘next level’.  The applicant returned to Vietnam for approximately six weeks in early August 2014.

15. The applicant said that after he stopped studying he did not do anything, he just stayed at home and that he assisted his wife with caring for their [child].   When asked why he did not find a new course of study or return to Vietnam he said he received a lot of information from home that was threatening which affected him psychologically and he was not able to concentrate on his study.  When asked how he supported himself over this time he originally stated that he was supported by his sisters and his friends and that he did not do any work.  Later in the hearing when pressed that it seems difficult to accept that his siblings would have met all his expenses for the five years since he arrived in Australia in June 2013, the applicant indicated that when he came to Australia he brought money with him from Vietnam and that he did do some work while he held a student visa and had limited work rights.  When asked why he returned to Vietnam in August 2014 the applicant said he wanted to see his [family], [who] are living there.  He said he also wanted to see if anything had changed in relation to concerns he expressed that he was being [threatened].

16. The Tribunal queried the applicant regarding the comment in the delegate’s decision record that he had admitted to working illegally during the almost one year period of time that he spent in the community as an unlawful non-citizen, and that he made no attempt to regularise his immigration status. The applicant commented that he never said he worked at this time.  He commented that he worked from time to time while his Student visa was still valid.  He added that because he ‘broke the law’ ([Details deleted] ) the delegate found that he had worked illegally.  He said he told the delegate that he had a friend who often provided assistance to his family and when this friend asked him to do ‘something for them’, he agreed to help them back.  He indicated that while initially he did not want to accept any money his friend did pay him and commented that because of that the delegate put down that he had worked.

17. In relation to the [conviction], the applicant said he was ‘innocently involved’.  He said that from October 2017 he was helping his friend with [certain work], and that sometime in November or December 2017 police followed him when he was driving, stopped and arrested him.  He indicated that his [sentence] was served as time on remand.  He said he was detained by Immigration on his release from prison.  He commented that this was the only time he was involved in such a [venture].

18. In relation to his failure to regularise his immigration status, the applicant said that when his visa expired in September 2016 he was stressed but he talked to a friend who said he could help the applicant get a visa.  He said his friend told him he had made an application for a protection visa on his behalf (this is supported by Departmental records that indicate a protection visa application for the applicant was lodged on 20 September 2016 but subsequently (on 21 November 2016) was found to be invalid).  The applicant said he lost contact with his friend and did not know what was happening with the application.  When asked he said he did not think of approaching any support services for assistance because he was stressed and he did not know where to go and which services might be able to help him.  The Tribunal put to the applicant that it was surprised he did not take some steps himself to find out what had happened with this application, including looking on the immigration website to see what it says about protection visas.  The applicant again commented that he was stressed and could not think clearly at that time.

19. The applicant’s representative provided the Tribunal with letters of support from his ex-wife and [sisters].  They have indicated that they are willing to provide financial support for the applicant’s living expenses in Australia as well as contribute between $10,000-15,000 towards a security.  Relevant bank account statements were provided to indicate that they have the capacity to provide such support.[1]  The Tribunal was able to contact two of the applicant’s sisters by telephone (one in [Country 1] and one in [Country 2]) and both indicated that they had provided financial support to the applicant in the past and were happy to do so in the future.  They indicated they had discussed the matter with their husbands who supported the offers of assistance and that they understood that they risked losing any money put forward as a security if the applicant did not abide by any conditions imposed on a Bridging visa granted to him.

    [1] See folios 25-39 of Tribunal file 1818478.

20. The applicant’s ex-wife also indicated that she is willing to have her ex-husband stay at her residence in [Victoria] where she resides with their child.  She commented that ‘We have a small child that needs the care from both of us’.[2]

    [2] See folios 43 of Tribunal file 1818478.

21. The applicant indicated to the Tribunal that he has no savings.  He said he has a car which is worth about $2,000.   He indicated he has no debts.  He indicated that he would be reliant on assistance from his ex-wife, his sisters and his friends to support himself if released on a bridging visa.

22. Having considered the applicant’s circumstances as outlined above, the Tribunal is not satisfied that the applicant would comply with the conditions imposed on his visa without a financial incentive to do so.  The Tribunal does not accept the applicant’s argument that he was ‘innocently’ involved in the criminal [venture] , or that this was not work because he did not really want to accept money for his part in the venture, but just wanted to return a favour to a friend who had helped him in the past.  The Tribunal considers that the applicant, who presented as an intelligent and articulate man, would have known that what he was doing was illegal, and finds that his evidence indicates that he did receive remuneration for his [work]. The Tribunal finds that the applicant showed a disregard both for Australian immigration law and Australian criminal law.  While the applicant commented that at the time he was not clear regarding the law, he indicated that after he was taken into custody he had reflected on his actions, expressed remorse for his wrongdoing, and indicated that he would abide by the law in the future with the support of his ex-wife, sisters and friends.

23. In relation to the applicant remaining in Australia for nearly a year as an unlawful non-citizen without regularising his immigration status, the Tribunal accepts that the applicant attempted to lodge a valid protection visa application, through a ‘friend’, in September 2016.  The Tribunal found the applicant’s evidence in relation to this matter to be vague, however, and concludes that the applicant took little or no personal responsibility for preparing, submitting or following up this application.  The applicant indicated that his friend told him he only needed to provide his personal details and the applicant took no responsibility for confirming the application had been lodged or the next steps in processing of the application.  He appears not to have received or acted on subsequent correspondence from the Department.  The applicant could not explain how he lost contact with the ‘friend’ who lodged the application on his behalf (he said he did not know how they lost contact) and his failure to seek third party assistance, look on the Immigration website, or approach Immigration reflects poorly on his investment in this application.

24. The Tribunal finds that the applicant has made wrong choices in the past, resulting in breaches of Immigration and criminal law, based on poor advice from or a desire to assist ‘friends’, and considers he might do so again in the future without an additional incentive to comply with visa conditions.

25. Having considered the evidence provided by the applicant’s ex-wife and his sisters, and considering the applicant’s desire expressed at the hearing to see his child and have a role in the care of his child, the Tribunal is satisfied that the applicant would comply with conditions if a security was obtained from family members.  Noting the offers made by his ex-wife and sisters in relation to a contribution that they would be willing to make to a security, the Tribunal finds that a security of $20,000 would be an appropriate amount to secure compliance with the relevant conditions, having regard to the conditions that must be complied with, the particular circumstances of the applicant including his financial position, and the financial circumstances of his family members offering financial assistance, and their relationship with the applicant.

26. On the evidence before it, the Tribunal is satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant meets cl.050.223.

27. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

28. The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

    ·cl.050.223 of Schedule 2 to the Regulations; and

29. The Tribunal also directs the primary decision maker

    ·to indicate to the applicant that conditions 8101, 8401, 8506 and 8564 will be imposed if the visa is granted; and

    ·to require a security of $20,000 for compliance with the conditions.

    Paul Windsor
    Member