1820932 (Migration)

[2018] AATA 2786

1820932 (Migration) [2018] AATA 2786 (24 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820932

MEMBER:Nathan Goetz

DATE:24 July 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 24 July 2018 at 5:40pm

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Whether the applicant will abide by the conditions of the visa – Applicant convicted of murder in home country – Failure to disclose criminal history – Applicant subject of an outstanding Interpol notice – Witness credibility – Dishonest and misleading evidence – Applicant like to not abide by conditions of visa – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 269, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 050.223, 050.613A, Schedule 8, Conditions 8101, 8401, 8506, 8564

CASES
Applicant VAAN of 2001 v MIMA (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.

2. The applicant provided the Tribunal a copy of the primary decision record.

3. The applicant is a citizen of Mongolia. According to the delegate decision, the applicant first arrived in Australia as the holder of a visitor visa [in] July 2016. The visa was valid for use until 20 May 2017 with a period of three months stay on each entry. The applicant departed Australia holding the same visa [in] August 2016.

4. The applicant last arrived in Australia [in] February 2017 holding the same visitor visa. On 14 May 2017 (6 days before his visitor visa was to expire), the applicant applied for a new visitor visa to extend his stay in Australia. He was granted a bridging visa to allow him to remain in Australia while his application for the visitor visa was being considered.

5. The department subsequently became aware that the applicant had a criminal history in Mongolia which indicated that the applicant had served a prison sentence in Mongolia [for a period of 9 years].

6. On 29 November 2017, the applicant was issued with a notice by the department to consider refusing his application for a visitor visa on the basis that he would not meet the character test to be granted a new visitor visa.

7. Further, on 16 January 2018, the applicant was issued with a notice by the department to consider cancelling the bridging visa which was associated with his new visitor visa application on the basis that he had not declared his criminal history in Mongolia to the department.

8. On 29 January 2018, the applicant’s bridging visa was cancelled and on 13 February 2018 the applicant’s visitor visa application was refused.

9. On 21 February 2018, the applicant lodged a protection visa application and an associated bridging visa was generated. He was granted that bridging visa to allow him to remain in Australia while his protection visa was considered.

10. On 18 April 2018, the applicant was issued with a notice by the department to consider cancelling his bridging visa because of his criminal history in Mongolia. On 8 May 2018, the bridging visa was cancelled and he was subsequently detained in immigration detention that day. Two days later, on 10 May 2018, the applicant withdrew his protection visa application and he requested removal from Australia.

11. On 12 July 2018, the applicant lodged a new application for a protection visa and an associated bridging visa was generated because the applicant was in immigration detention. On 18 July 2018, the delegate refused to grant the bridging visa. The delegate was not satisfied that the applicant would abide by conditions which the delegate would impose on the bridging visa. That same day, the applicant filed a review application with the Tribunal of the delegate decision to refuse the bridging visa on 18 July 2018.

12. At that time of application, 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).

13. On 24 July 2018 the applicant appeared at the Tribunal by audio-visual link from immigration detention to give evidence and present arguments as to why he should be granted the bridging visa. The applicant was assisted by a Mongolian interpreter.

    RELEVANT LAW

14. 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.

15. 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].

16. 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]. 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].

17. In this case, the applicant has made a protection visa application while he is in immigration detention. Clause 050.613A provides the conditions relevant to the application for a bridging visa. In this clause, condition 8101 is mandatory, unless condition 8116 is imposed. One or more of conditions 8116, 8201, 8207, 8401, 8505, 8506, 8507, 8508, 8510, 8511, 8512 and 8548 may be imposed as a condition of the bridging visa. Condition 8116 must not be imposed unless the applicant is in a class of persons specified by the Minister by legislative instrument for this subclause. Clause 050.618 allows condition 8564 to be imposed in addition to any other condition imposed by another provision of Division 050.6

18. 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

    8401The holder must report: (a) at a time or times; and (b) at a place specified by the Minister

    8506The 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

    EVIDENCE TO TRIBUNAL

    Immigration History

19. The applicant confirmed his Australian immigration history as outlined in the delegate decision which is repeated in paragraphs 3 to 11 in this decision.

    Information provided by the applicant to demonstrate that he is ‘of good character’

20. At the start of the hearing, the applicant advised the Tribunal that he had some documentation that he wished the Tribunal to consider when determining his application. As the applicant appeared at the Tribunal by audio-visual link, that documentation was not received until after the hearing. The applicant did give oral evidence about the content of the documentation (which was in Mongolian with an English translation). Upon receiving the documentation, the Tribunal is satisfied that the content of the documentation is consistent with the oral evidence that the applicant gave regarding the documentation.

21. The Tribunal accepts that the applicant has previously worked as [a senior manager] of [Company 1] in Mongolia from [October] 2013 until [April] 2017. It accepts his oral evidence that he owns shares in that company and accepts that he is well regarded by that organisation. The Tribunal accepts that the applicant voluntarily participated in [a particular] non-government organisation in Mongolia which is an organisation [that undertakes particular philanthropic activities]. It accepts that the applicant [undertook various philanthropic activities for] the organisation. The Tribunal accepts that [a particular] resident of Mongolia, who provided a letter of support, believes that the applicant is an honest and supportive friend and that he is responsible and trustworthy. The Tribunal accepts that the applicant has [undertaken a particular charitable activity] as outlined in their letter. The Tribunal accepts that the applicant has donated [an amount] towards [a particular event] of [a particular community organisation] and has also [undertaken other charitable activities] as outlined in their letter.

    Criminal History

22. The applicant told the Tribunal that he had pleaded guilty to a charge of murder and that he was imprisoned in Mongolia [for a period of 9 years]. He explained the circumstances of the offending as [details of offending removed].

23. The applicant conceded to the Tribunal that this offending had not been included in his original visitor visa application, nor on the two passenger cards he completed for his two trips to Australia, and not included in his subsequent visitor visa application which he completed in Australia.

24. He told the Tribunal that this was not declared on his first visitor visa application because the application had been completed by his assistant when he was [a senior manager] of [Company 1]. He told the Tribunal that he did not share his criminal history with that company so that is why that information was not included in the application.

25. He told the Tribunal that he did not declare the criminal history on his incoming passenger cards because of his limited English and that he just copied the person next to him on the plane. He told the Tribunal that he assumed the passenger card would ask the same questions he was used to when he would travel into Mongolia or China and ‘assumed it was about drugs or prohibited items.’

26. He told the Tribunal that he did not declare the criminal history in his new application for a visitor visa because he used a migration agent for this application and his agent did not ask him about this information.

27. In response to whether the applicant had any outstanding cases against him in Mongolia, the applicant told the Tribunal that he is suspected by the Mongolian authorities of another murder. He told the Tribunal that there was an Interpol notice out for his arrest. According to the applicant, [details removed]. The applicant told the Tribunal that the person was murdered in [2015]. He was detained for a few months but then released. The applicant told the Tribunal that he believed that he was no longer suspected of involvement in this murder, but that in [2017] and again in [2018], Mongolian authorities attended on his family in Mongolia because they wanted to question the applicant and clarify a few things. Apparently, the person who actually carried out the murder had been charged by the authorities and has pleaded guilty to the murder. The applicant said that he fears if he returns to Mongolia he will be held in detention because this case is still an issue, despite his previous belief that the matter had concluded.

28. The applicant told the Tribunal that he did not declare to Australian authorities that he was the subject of an ongoing investigation in Mongolia because he thought that this investigation was not relevant to him after he had been released in 2015, and that he only became aware that the matter was not concluded in [2017] when police attended his family home in Mongolia because they wanted to question him.

    Residential History

29. The applicant told the Tribunal that prior going into immigration detention [in] May 2018 he was living at [a particular address] where he had been for about 7 months. He was paying $350 a week in rent. He told the Tribunal that he had always updated the department when he was changing his address and told the Tribunal that if he was released from immigration detention, he proposed to live with his sister who is in Australia. She runs a [business] where he sometimes helped out but he was not paid for this any of this work.

    Employment and Financial Circumstances

30. The applicant gave evidence to the Tribunal that he has not worked during his time in Australia. His evidence was that his wife sends money to him from Mongolia on a needs basis. He said that he usually receives between $4000 and $5500 per month from his wife when he requires it. It is from this money that he meets his living expenses. He told the Tribunal, and the Tribunal accepts that at the time he was detained he had about $1000 on his person and $3000 at home.

    FINDINGS

31. As noted in paragraph 28, the Tribunal accepts that the applicant has been involved in business as well as charitable works while he was in Mongolia. However, the Tribunal places little weight on those documents when considering whether the applicant would abide by conditions. Those documents speak of the authors’ personal experience of the applicant. Whether the applicant would abide by conditions is to be considered in light of the applicant’s demonstrated past conduct regarding his migration matters. When considering the evidence as a whole, the Tribunal does not find that the applicant is a credible witness. The Tribunal bases that finding on inconsistencies between the applicant’s oral evidence to the Tribunal and evidence that he has previously given to the department.

32. The first instance of inconsistency is that he told a departmental officer on 8 May 2018 in a departmental interview that he had no criminal history overseas. The applicant has the use of a Mongolian interpreter during that interview. When this information was put to the applicant under s.359AA of the Act, the applicant told the Tribunal that he did tell the officer that he had a criminal history overseas. The Tribunal rejects that explanation because it is inconsistent with the document which was produced by the department. The Tribunal accepts that the departmental officer asked the applicant the question as outlined in the document and the respondent answered that he did not have a criminal history in Mongolia, despite the applicant in effect being put on notice about this issue through various departmental notices that his criminal history was an issue being considered by the department. This suggests to the Tribunal that the applicant thought that by answering no he would achieve a positive migration outcome.

33. The second instance of inconsistency is that he told a departmental officer on 15 May 2018 that he did not have easily accessible money from overseas. This was in conflict with his oral evidence to the Tribunal that his wife was providing him money from overseas. When this information was put to under s.359AA of the Act, the applicant told the Tribunal that he does not use banks and uses people to transfer money. The Tribunal rejects that explanation because the question asked was whether he had accessible money from overseas. It is reasonable to expect that the applicant would have answered that question on the basis that his wife was providing him money to meet his living expenses. This suggests to the Tribunal that the applicant has not been receiving financial report from his wife overseas and has been in fact supporting himself in Australia by some other means.

34. The third instance of inconsistency is that he told a departmental officer on 15 May 2018 that his marital status was ‘single’. This was in conflict with his oral evidence that he has a wife overseas who was sending him money. When this information was put to the applicant under s.359AA of the Act, the applicant told the Tribunal that he was not married but in a long term relationship with his wife. The Tribunal rejects that explanation because the applicant’s response was single. It would be reasonable to expect that the applicant would say that he had a wife. This suggests to the Tribunal that the applicant may not in fact have a partner in Mongolia, which further raises doubts over whether has been receiving overseas financial support to meet his living expenses in Australia.

35. These inconsistencies, when coupled with the applicant’s responses as to why he did not declare his criminal history in his initial visitor visa application, his two passenger cards, and his subsequent visitor visa application, trouble the Tribunal greatly.

36. Firstly, the inconsistent responses demonstrate to the Tribunal that the applicant has a flexible approach to the truth and is willing to give whatever evidence he thinks will assist him in achieving his desired migration outcome.

37. Secondly, his failure to declare his criminal history demonstrate that the applicant has an indifferent approach to his migration obligations and is either cavalier when answering important questions, or is deliberately dishonest and does not declare important information because he is worried it will have a negative impact on his desired migration outcome. Given the Tribunal’s concerns about the applicant truthfulness because of his inconsistent evidence, the Tribunal finds the applicant was deliberately dishonest in not declaring his criminal history and hid his criminal offending from authorities because he suspected that if his criminal history was known by Australian authorities, he would not be allowed to come and/or remain in Australia. The Tribunal does not accept the applicant’s explanations as given in his oral evidence as to why he failed to disclose his criminal offending.

38. The Tribunal is not satisfied that the applicant will abide by a condition not to work. It is not satisfied that he has received funds from overseas to meet his living expenses in the past and is not satisfied that living expenses could be met by overseas funds in the future. The Tribunal is not satisfied that the applicant would abide by condition 8101 as this would appear to be his only means of support.

39. Compounding those concerns, the applicant is currently the subject of an Interpol notice (as conceded by him) and confirmed by a departmental case note of 29 June 2017. The applicant concedes that the matter is not resolved and currently ongoing. To the Tribunal’s mind, this would act as an incentive for the applicant to go missing in Australia to avoid a possible return to Mongolia should his protection visa application be refused. As such, the Tribunal does not accept that the applicant would report to the department when required or abide by conditions to notify the department of changes to his residential address. The Tribunal is not satisfied that the applicant would abide by condition 8401 or 8506.

1. Importantly, the Tribunal has grave concerns that the applicant would commit criminal offences in Australia. He has pleaded guilty to one murder in Mongolia and is the subject of an investigation regarding another. Although the Tribunal concedes that none of the conduct (and alleged conduct) has occurred in Australia, it is simply too greater risk that the applicant would commit offences in Australia. The Tribunal is not satisfied that the applicant would abide by Condition 8564 if he was granted a bridging visa.

2. There was no evidence given to the Tribunal regarding a potential security. However, the Tribunal is only required to consider the security question if the Tribunal finds that the applicant will comply with the conditions if a security is imposed. As discussed previously, the Tribunal is not satisfied that the applicant would comply with conditions.

   CONCLUSION

3. 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.

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

5. 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

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

   Nathan Goetz
   Member