1819791 (Migration)

[2018] AATA 3723

1819791 (Migration) [2018] AATA 3723 (17 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1819791

MEMBER:Justine Clarke

DATE:17 July 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 17 July 2018 at 5:07pm

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Whether the applicant will abide by the conditions placed on the visa – Where applicant is of limited financial means – Where applicant is receiving financial support from an unrelated third party – Applicant would be financially vulnerable if support was withdrawn – Tribunal is not satisfied the applicant will not engage in work – Where the applicant has a history of disengagement with the department – Where the applicant overstayed their substantive visa – Tribunal is not satisfied the applicant will appropriately engage with the Department – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.221, 050.222, 050.223, 050.613A, Schedule 8, Conditions 8101, 8107, 8207, 8301, 8401, 8506

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] is [a particular] age. She told the Tribunal that she is a national of Liberia.

3. On 4 July 2018, the applicant applied for the visa. At that time, Class WE contained two subclasses: Subclasses 050 and 051. 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). The primary criteria include cl.050.223.

4. On 6 July 2018, a delegate of the Minister made the decision to refuse to grant the visa on the basis that the delegate was not satisfied that the applicant would abide by the conditions that would be placed on the visa if it was granted. On this basis, cl.050.223 was not met.

5. On 13 July 2018, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] by telephone from Ghana. The applicant was represented in relation to the review by her registered migration agent and the representative also attended 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. There is no controversy that, at the time of application, the applicant met the requirements of cl.050.211 as an unlawful non-citizen and a person who was not an eligible non-citizen of the kind referred to in cl.050.211(2). With regard to cl.050.212, there is no controversy, either, that the applicant met the requirements of cl.050.212(3)(a). Subclause 050.212(3)(a) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined.

8. In view of the information and evidence before it, the Tribunal is satisfied that the applicant meets the criteria in cl.050.211 and cl.050.212 and that, at the time of this decision, she continues to meet those criteria and thus she meets cl.050.221. The Tribunal is also satisfied that cl.050.222 is met.

9. The issue in this case is whether, if the visa is granted, the Tribunal is satisfied that the applicant will abide by the conditions that will be placed on the visa. That is, the issue is whether, at the time of decision, the applicant meets cl.050.223.

10. At the hearing, the Tribunal explained to the applicant that the issue in the case was whether, should she be granted a Bridging E visa, she would abide by any conditions imposed upon her. The Tribunal discussed, with the applicant, her immigration history. The Tribunal also invited the applicant to provide oral evidence which she thought was relevant to this review.

    Applicant’s immigration history

11. At the hearing, the Tribunal informed the applicant that it had reviewed her movement record which evidences her entry into Australia as well as details of the visa granted. The Tribunal informed the applicant that it would outline the information in that record and ask her whether the information is correct. When so asked, the applicant agreed that she had been granted a [temporary] visa on 16 November 2017 and that this visa was due to cease, and did cease, on 15 May 2018. She also agreed that she had arrived in Australia on [a particular date in] March 2018.

12. The Tribunal referred the applicant to the primary decision which states that she was granted the visa specifically to [undertake particular work] and that it was granted pursuant to conditions 8107 and 8301. The visa applicant gave oral evidence that she had not been aware of the visa conditions as someone else had applied for the visa on her behalf and she had simply been handed the papers at the airport before boarding the aeroplane to Australia and had been told to read through the information.

13. Condition 8107 was described in the primary decision as follows:

    Enabling the holder to be employed in Australia provided they do not:

    (a)  cease to be employed by the employer in relation to which the visa was granted; or

    (b)  work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or

    (c)  engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.

14. The applicant gave oral evidence that she had not [undertaken the work for which her visa was granted]. She explained that she is [in a different occupation]. On the evidence before the Tribunal, the applicant did not comply with condition 8107.

15. Condition 8303 provides that the holder must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community. There is no suggestion that the applicant failed to comply with this condition.

16. When the Tribunal asked the applicant why she had not sought to regularise her visa status prior to the expiry of the visa, she explained that she had been scared. She said that she was worried that she would be sent back to Ghana. She explained that she had not had anybody to advise her.

17. The Tribunal asked the visa applicant how it was that she had come to the attention of the immigration authorities and she explained that she had been picked up from the house where she was living in a named suburb in Victoria.

    Whether the applicant will abide by conditions - cl.050.223

18. Clause 050.223 requires that, at the time of decision, the Tribunal is satisfied 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.

19. 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.

20. 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].

21. 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.

22. 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 for the purposes of cl.050.613A(1)(b). In these circumstances, condition 8101 is mandatory: cl.050.613A(1). In addition, cl.050.613A(2) prescribes that certain conditions may be imposed. For present purposes, it is apt to note that these include conditions 8207, 8401 and 8506.

23. The Tribunal concurs with the conditions selected by the delegate and 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 any studies or training in Australia.

    ·8401 – The holder must report (a) at a time 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.

24. The Tribunal has considered the likelihood that the applicant would abide by these conditions if the Bridging E visa is granted.

    Condition 8101: The holder must not engage in work in Australia

25. The Tribunal discussed this condition with the applicant. The applicant told the Tribunal that she would comply with this condition.

26. The applicant gave oral evidence that she had not understood the conditions associated with the Temporary Activity visa which she had obtained while in Ghana. She said that the person who had obtained the visa for her had not explained to her that she could not seek work but rather, to the contrary, had told her that she could work. 

27. Notwithstanding this evidence that the applicant thought that she had been permitted to work in Australia, she denied ever having worked in Australia. She said that, in the period prior to the cessation of the visa, she had looked for work but had not obtained any work. She said that she had undertaken three days of unpaid work—or training—at [Shop 1] in [a particular suburb]. She said that, in the period after the cessation of the visa, she had helped out in [a different shop], including [undertaking particular tasks]. She denied that this was paid work and said that she had merely been helping.

28. The Tribunal found the applicant’s evidence that she had not worked while in Australia to be unconvincing and it has concerns about her credibility. The Tribunal notes that the primary decision states that the applicant had told the delegate that [Mr A] had helped her to find paid employment in [Shop 1]. The primary decision also states that the applicant told detaining officers that, after the cessation of the visa, she had worked and that, when this adverse information was put to her in the interview with the delegate, she had not refuted it but rather had said that she was working to save money to apply for a visa. The Tribunal acknowledges that it did not discuss these concerns with the applicant.

29. The applicant said that, in her interview with the delegate, she had been confused by the question about what she intended to do should she be released from detention. According to the primary decision, she stated that she would like to go to school and to work. At that time, she also advised that she would like to undertake a course of study in [a particular] field as she would like to become [a particular kind of professional] or [another kind of professional]. At the hearing, the applicant gave oral evidence that she had thought that the question related to what she intended to do should she be granted the Protection visa. She said that she now understood that, in the circumstances of her case, there is a mandatory no work condition associated with the grant of a Bridging E visa and that she would not work or study. She said that if she were granted the visa she would learn at home by reading books.

30. The applicant told the Tribunal that [Mr A] would support her financially. She said that he had already provided her with financial support: offering her accommodation in his house from the day they first met. She could not recall the date that they had met but thought that it was in March or April—certainly before the cessation of the visa. She said that [Mr A] was not previously known to her and that she had approached him in the city, told him her story and begged him to help her ‘as a sister’. She said that she had told him that she would not do anything to put him in any trouble. She said that she has a bank account and that [Mr A] had given her money to put into the account and that the account has a balance of around $800. The Tribunal notes that no corroborating documents were submitted. She also said that when [Mr A] had left Australia for Ghana on [a particular date in] June that he had entrusted her with looking after $2,000 cash in the house and paying bills from that money. She said that [Mr A] was expected back on [a particular date in] July.

31. When asked, she denied that [Mr A] was a relative of her or her guardian or that she was in a relationship with him. She also denied having paid any money to [Mr A] or having entered into any arrangement with [Mr A] in the event that she is granted a visa and required to repay monies to him.

32. [Mr A] gave broadly consistent oral evidence about how it was that he came to know the applicant and the support that he has provided her to date (including that he had left almost $2,000 in the house and asked her to pay some bills) and which he is willing to continue to provide—even giving evidence that he would be prepared to provide a security. The Tribunal notes that, at the hearing, a transaction listing was submitted which shows details of [Mr A]’s bank balance and transactions from 12 April 2018 to 11 July 2018 and which suggests that he would have the means to pay a modest security.   

33. However, the Tribunal notes that there was a significant inconsistency in the applicant’s and [Mr A]’s oral evidence. [Mr A] gave oral evidence that he thought that he had met the applicant only a week or a week and a half before he had left [Australia] [in] June. This would mean that it was after the cessation of the visa, not before the cessation of the visa as the applicant had claimed.     

34. The Tribunal is concerned that, if the applicant was granted the Bridging E visa and released from detention, she would not have the necessary financial support she needed and may seek paid employment in breach of this visa condition. While [Mr A] has given oral evidence that he will provide the applicant with shelter, food and the financial support she requires, the Tribunal is mindful that he is said to be a person previously unknown to her and who she is not in a relationship with. The Tribunal considers that the applicant would be in a particularly vulnerable position if [Mr A] were to withdraw or change the nature of his support.

35. Having considered all the evidence, including evidence of the applicant’s past conduct in breaching a condition imposed on her visa and concerns about the applicant’s credibility, the Tribunal is not satisfied that she would comply with condition 8101.

    Condition 8207: The holder must not engage in any studies or training in Australia

36. The Tribunal discussed this condition with the applicant. The applicant told the Tribunal that she would comply with this condition and, when asked specifically, she stated that she would not undertake any unpaid training. The Tribunal notes that, on the evidence before the Department, the delegate was satisfied that the applicant would comply with this condition. 

37. Having considered all the evidence, including the applicant’s oral evidence to the Department that she does not have the financial means or the Australian residency status to pursue [studies], the Tribunal is prepared to accept the applicant’s oral evidence that she would not engage in any studies or training in Australia as required by condition 8207.

    Condition 8401: The holder must report (a) at a time and (b) at a place specified by the Minister for that purpose and Condition 8506: The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address

38. The Tribunal discussed these conditions with the applicant. The applicant told the Tribunal that she would comply with both conditions.

39. She acknowledged that she had been scared in the past but said that she had met more officers in the Detention Centre and if she was granted the Bridging E visa that she would not run away or hide.

40. However, the applicant’s past conduct in securing the grant of a visa under false pretences, not complying with a condition of that visa and disengaging with the Department and overstaying her visa weigh against a finding that she would comply with these conditions. 

41. Having considered all the evidence, the Tribunal is not satisfied that she would comply with conditions 8401 and 8506.

    CONCLUSION

42. The applicant’s evidence at the hearing indicated that she understands the seriousness of her current status. She indicated a keen willingness to comply with visa conditions so that she may return to the community. However, the Tribunal is not satisfied that she would abide by all of the above visa conditions if she were granted a Bridging E visa. The Tribunal has reached this conclusion because the applicant has breached significant immigration laws. Her immigration history is that she was granted a visa for an express purpose but that she entered Australia and did not comply with a condition associated with that visa. Her history also evidences her as having overstayed her visa and not having sought to regularise her immigration status until she was located by immigration officials.

43. The Tribunal accepts the applicant’s evidence that she is contrite for her past actions. While the applicant gave direct evidence, the Tribunal is not satisfied that she gave full particulars at all times. In this respect, the Tribunal finds the nature of the applicant’s relationship with [Mr A], and his willingness to provide financial support of the extent suggested, highly unusual given that [Mr A] is said to be a person previously unknown to her and who she is not in a relationship with. As noted earlier, there were also some areas of the applicant’s evidence which cause the Tribunal to doubt her credibility.

44. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted, even if a security were imposed. Therefore, the applicant does not meet cl.050.223.

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

46. 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

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

    Justine Clarke
    Member