1821435 (Migration)

1821435 (Migration) [2018] AATA 3507 (2 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1821435
MEMBER:Joseph Lindsay
DATE:2 August 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 02 August 2018 at 3:43pm

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Whether the applicant will comply with the conditions of the visa – Whether the applicant will engage in work – History of non-compliance with visa conditions – Whether the applicant will be financially supported in the community – Paucity of evidence provided in relation to financial supports – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212(3A), 050.221, 050.222, 050.223, 050.612A, 050.613A, Schedule 8, Conditions 8101, 8207, 8304, 8401, 8506
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

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 (the bridging visa E) under s.73 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 19 July 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 1994 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.212(3A).
The decision to refuse to grant the visa was made on 23 July 2018 on the basis that the delegate was not satisfied that the applicant would not work or that he would have sufficient financial support to support himself in the community.
The applicant appeared before the Tribunal on 30 July 2018 to give evidence and present arguments. The applicant was represented by [a particular lawyer]. The Tribunal received oral evidence in person from the applicant’s sister, [Ms A]. The Tribunal received oral evidence by telephone from the applicant’s friend, [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
As indicated above, the issue in this case is that the delegate was not satisfied that the applicant would comply with a number of conditions as part of the bridging visa, particularly mandatory condition 8101 (the holder must not engage in work in Australia). The Tribunal notes that there were other conditions that the delegate was not satisfied that the applicant would abide by, including conditions 8304, 8207, 8401 and 8506. However, for the reasons below, the Tribunal is not satisfied that the applicant would comply with mandatory condition 8101.
Whether or not mandatory condition 8101 applies to the applicant
During the hearing, the Tribunal discussed with the applicant and his agent the issue that the applicant’s circumstances meant that mandatory condition 8101 would apply to him if he was to get a bridging visa E. The Tribunal noted that the delegate’s decision referred to the fact that he was satisfied that subclause 050.212(3A) in Schedule 2 of the Regulations applied to the applicant because he had lodged judicial review of a decision to refuse to grant a substantive visa of a kind that can be granted whilst he was in Australia (in the applicant’s case, a protection visa). The consequence of this is that, under clause 050.612A in Schedule 2 of the Regulations, condition 8101 must be imposed.
The Tribunal also noted that clause 050.613A in Schedule 2 of the Regulations also applied, that states:
(1) In the case of a visa granted to an applicant (whether or not the applicant is an applicant to which any other clause in this Division applies, other than clause 050.613 or 050.616A) who:
(a) applies for a protection visa; and
(b)is not in a class of persons specified by the Minister by instrument in writing for this paragraph;
condition 8101, unless condition 8116 is imposed.
(2)If the applicant is an applicant to whom subclause (1) applies, any 1 or more of conditions 8116, 8201, 8207, 8401, 8505, 8506, 8507, 8508, 8510, 8511, 8512 and 8548 may be imposed.
(3)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.
The Tribunal finds that clause 050.613A in Schedule 2 of the Regulations has application to the applicant. The consequence of this is that mandatory condition 8101 also must be imposed if the applicant were to be granted a bridging visa E.
Accordingly, in the Tribunal’s view, regardless of any other issue, if the applicant was to be granted a bridging visa E, he needed to be able to satisfy the Tribunal that he actually would comply with condition 8101.
Issues raised at hearing on Monday 30 July 2018
As indicated above, on Monday 30 July 2018, a number of relevant issues were raised during the hearing.
Applicant’s understanding as to why condition 8101 would be imposed
A concern raised during the hearing was the applicant’s apparent lack of understanding as to why he would not be permitted to work if he got a bridging visa E.
The Tribunal spoke to the applicant about the delegate’s decision record dated 23 July 2018. At first, the applicant indicated he had read the decision and that he had understood it, but only a little bit. When the Tribunal asked the applicant to explain his understanding of the decision he indicated that he had different sponsors now to what he had before, that he had such a short time to find them and did not have their phone numbers. The applicant then indicated he actually did not understand the decision. When the Tribunal again asked the applicant what he thought the bridging visa was for, he indicated that the purpose was to stay here (Australia) while waiting for outcome from court and that he was not allowed to work.
However, when the Tribunal asked the applicant if he understood why he was not allowed to work, he indicated that he did not understand. The Tribunal then decided to speak to the applicant about the delegate’s decision. During this discussion, the applicant agreed with the delegate’s finding that he was in fact an unlawful non-citizen at the time of application. Accordingly, the Tribunal finds that the applicant was an unlawful non-citizen at the time of application.
The Tribunal indicated that the delegate had gone through a legal process and had addressed a range of criteria as to whether he was satisfied or not satisfied that the applicant had met the criteria. The applicant indicated to the Tribunal that he understood what the Tribunal has explained to him.
The Tribunal referred to the delegate’s decision where he indicated that he found that the applicant satisfied clause 050.221 and 050.222 to schedule 2 of the Regulations because he was interviewed by an authorised officer on 18 July 2018. The Tribunal finds that it is also satisfied that the applicant satisfied clause 050.221 and 050.222 to schedule 2 of the Regulations.
The Tribunal indicated to the applicant that the mandatory condition that has to be applied in the applicant’s circumstances is 8101 – no work. The applicant indicated that he understood what the Tribunal had explained to him.
The Tribunal then referred to the delegate’s decision where the delegate referred to the fact that the applicant had admitted to working when he did not hold a visa and he knew he could not work. The Tribunal then indicated to the applicant that he had already made admissions that he would work even if he was not allowed to, to which the applicant responded that was not correct.
The Tribunal referred to the delegate’s decision where the delegate stated that the applicant was granted a bridging visa class visa WA-010 on 21 June 2016 and that this visa ceased on 14 November 2017, to which the applicant agreed.
The Tribunal then referred to the interview the delegate had with the applicant on 19 July 2018, in which the applicant stated he became aware in February this year that he did not hold a visa to remain in Australia. The Tribunal noted that when the delegate asked the applicant why he did not approach the Department to regularise his visa status when he became aware he did not hold a visa, the applicant stated ‘because this agent took money from me and said he would resolve my visa status.’ In response, the applicant agreed that this is what he said to the delegate.
The Tribunal then referred to the interview the delegate had with the applicant on 20 July 2018, in which the applicant admitted to working in April 2018 whilst he knew that he did not hold a visa to remain or work in Australia. In response, the applicant stated:
During the interview session they ask me many questions. So many questions have been rounded and rounded, just go in circle or could be difference.
The Tribunal then asked the applicant whether or not he said to the delegate he was working in April 2018 whilst he knew that he did not hold a visa to remain or work in Australia, to which he responded:
Yes I did say it.
The Tribunal then asked the applicant what work he was doing in April 2018. Initially, the applicant indicated that in April 2018 he remained at home and he did not have a job. However, after further questioning, and reminding the applicant that he had already admitted to working in April 2018, the applicant confirmed he did work in April 2018 at [a business] in [Suburb 1].
After some discussion with the agent about the applicable legal mechanism, the Tribunal then turned its attention back to the applicant and his understanding as to what the 8101 condition meant. During the discussion, the applicant indicated he understood that the ‘no work’ condition 8101 would apply to a bridging visa E, and that was why the Tribunal was going to talk to him about his work and his ability to financially support himself, to which he indicated that he understood what the Tribunal had said to him.
Whether or not the applicant is likely to comply with condition 8101, not work and be financially supported in the community
The Tribunal indicated to the applicant that he had indicated at hearing that he was working when he knew he didn’t have a legal right to work, and that indicated to the Tribunal that he probably would not comply with the mandatory condition not to work. In response, the applicant said:
That time when I work, I did not have any supporters but now I have supported who can support my BVE.
When the Tribunal asked the applicant about his supporters, the following questions and answers occurred:
A. There are three persons – [Mr C], [Ms D], [Mr B], and [Mr E]. They are all my friends.
Q. They’re just friends?
A. They are my good friends.
Q. How do you know them?
A. [Ms D] and [Mr E] I get to know them in August 2017. That time I work in [Business 1].
Q. Where was that?
A. [Suburb 2].
Q. So you met [Ms D] and [Mr E] there. How do you know [Mr B] and [Mr C]?
A. I met [Mr C] in [Suburb 1].
Q. And [Mr B]?
A. Met [Mr B] at [Business 2].
Q. What’s [Business 2]?
A. Entertainment centre, places where we can drink.
Q. In [Suburb 1]?
A. Yes.
Q. You met [Mr B] at the club in [Suburb 1]?
A. Yes. From there our relationship get closer and closer. He is Australian.
Q. You’ve got your sister outside, what role does she play? Is she a supporter of yours?
A. No.
Q. How come?
A. Her financial means is only just sufficient for her own family.
Q. Own family? She has her own family?
A. She has a husband, child and a mother in law.
Q. Are they here with her?
A. No.
Q. But she is working here and they are back in Malaysia?
A. What do you mean?
Q. You were telling me your sister can’t financially help you because she has got her family, husband, child and mother in law, to support. Is that right?
A. Yes.
Q. So if I talk to her what can she tell me about this issue?
A. Perhaps she can inform you about my supporter or things about my supporter, because during the time I was detained I could not do anything, I then mentioned to her to look for my supporter, to approach my supporter.
Q. You got your sister to get supporters for you?
A. Yes.
Q. Ok. Is your mother supporting you?
A. In what sense, money?
Q. Yes.
A. No.
Q. She is not able to?
A. No.
Q. How come?
A. Because what she has is just sufficient for herself.
Q. Did you ever live with them? Your mother and your sister?
A. Before this or what?
Q. Yes. They’re not living with you now (as he is in detention)?
A. No before this I did not stay with them.
Q. You never lived with them in Australia?
A. (indicated no).
Q. So I’m clear, you’ve got friends who can financially support you but your family members can’t?
A. Yep.
Q. So you’ve given me four people who can financially support you. How can [Mr C] support you?
A. I request [Mr C] to support me every month with $100 while waiting for outcome of tribunal.
Q. $100? What about [Ms D]?
A. Same as [Ms D].
Q. What about [Mr E]?
A. Same.
Q. And [Mr B]?
A. As for [Mr B] between $200 to $300.
Q. Why would he give you that?
A. Because he works and he has some surplus money and he has a better job.
Q. What does [Mr B] do?
A. He involved in [construction].
Q. He’s a builder?
A. Yes.
Q. And you met him in a hotel and struck up a friendship and he is going to pay for you now?
A. No actually, I met him almost every day.
Q. You met him every day?
A. Because long time ago I work for him as well.
Q. Doing what?
A. Construction.
Q. He was your boss, was he?
A. Yes.
Q. How long did you work for him for?
A. Five days. I live in his house.
Q. You lived in his house?
A. Yes.
Q. How long did you live in his house for?
A. Two months.
Q. Then after that we always met each other in [Business 2].
A. When you stayed in his house did you pay him rent?
Q. No.
A. How come he let you live there for two months?
Q. Because he an ok person, we always have each other.
Q. So just going back to your decision record. It says: ‘At interview on 19 July 2018 I stated that if a bridging visa were to be granted it would not carry work rights. I asked you how you would support yourself financially in the community if you were granted a bridging visa. You stated, ‘maybe I will contact my lover and borrow money’. I asked you to clarify your relationship status because you had stated earlier in the interview you were not in a relationship and were single. You did not clarify this relationship however you provided the name of your lover, [Ms F].’
A. She ([Ms F]) is back in Malaysia.
Q. You haven’t indicated to me that [Ms F] is going to financially help you, is that correct?
A. At that time, I did not have sufficient time to contact my supporter, so what I did was I ring her up and she told me she was willing to support me.
Q. Is that still the case or not the case?
A. Since then I did not inform her anything because I’ve got supporter here.
Q. So you don’t propose to get her to support you?
A. Yes I did not inform her anything.
Q. Ok, so we’ll go back to the delegate decision. ‘In response to financial support in the community you also stated, ‘maybe borrow money from my friends’. You provided the following names; [Mr G], and [Mr H] (no surname supplied). I asked you how you could confirm to me that you would receive their support. You stated, ‘if released from here I would go and see my friends and talk to them’. I asked how I could speak with your friends to confirm that they would provide support. You stated, ‘when I get out I will talk to them and ask’. I asked if there was any way you could get their phone numbers. You stated, ‘I’m not sure I will have to ask them. I will have to see them in person. I don’t have their numbers’. So what you’ve told me here today, none of those people here are people you mentioned to the delegate. Is there a reason for that?
A. Yes.
Q. What’s the reason?
A. At that time we only contact through Facebook.
Q. [Mr G] and [Mr H]?
A. Yes, because I did not have a phone.
Q. Have you ever had a phone?
A. No.
Q. You’ve never had a phone while you were in Australia?
A. Yes I did. The time I was in detention I did not have a phone.
Q. So I was asking you is there any reason why you haven’t raised the names of any of these other people here with me today, [Mr G] and [Mr H]?
A. As I mentioned before I contacted them, they were worried, sceptical.
Q. About what?
A. My situation.
Q. What were they worried about?
A. If I was actually cheating them, lying to them.
Q. Why would they think that?
A. I don’t know, we only chat through Facebook.
Q. Why would they be worried you were lying to them?
A. Because they did not believe, unless they see the photo, that I was in detention.
Q. Why wouldn’t they believe you?
A. I don’t know.
Q. Did they say they didn’t believe you?
A. No they didn’t. Only after I managed to borrow phone from other people I managed to contact my other friends.
Q. The delegate goes on in his discussion ‘I stated that to grant you a bridging visa I would need to be satisfied that you would receive adequate financial support in the community without working. I stated you needed to provide evidence. You stated you could provide this evidence by Friday (20 July) evening or tomorrow. I stated I would meet with you on Monday 23 July at 9am to provide evidence. I asked you if you would be able to survive in the community if your friends did not provide support and you could not work. You stated, ‘yes I can’. I asked you how you would survive if friends did not provide support and you could not work. You stated, ‘I would look for some other people to give me that support’. You also stated ‘if I am able to work than I definitely would’ ‘At interview on Monday 23 July you did not provide any evidence of financial support.’ What would you like to say?
A. On 22 July I received two letters, one letter to deport me, the other about the interview. I was asked for a search of my personal belongings. At the time I did ask if I would be deported and the answer I received was ‘yes’. At that time I face pressure. The answer I gave on 23 July was probably not correct because at that time I had pressure.
Q. It wasn’t correct because you had pressure?
A. Yes.
Q. ‘At interview I asked you how you would pay your migration agent. You stated that your lover sent you $3000 and your Auntie $3000. I asked if you could show evidence of funds transferred to you. You stated, ‘regarding my lover I can. Regarding my Auntie I don’t know because I was checking on Facebook only. I don’t know if it was transferred to the account or not’. You also stated [Ms F] had transferred the $3000 to your younger sister’s bank account. You provided no evidence to support your claims.’ Anything you want to say about that?
A. At that time I was in detention. Regarding the evidence, I ask my sister to provide.
Q. Your younger sister?
A. Yes.
Q. Does she have evidence?
A. She say she has brought with her all the evidence.
The Tribunal asked [Ms A] to give evidence. [Ms A] provided her phone to the Tribunal to show a record of a money transfer. When the Tribunal asked who the money went to, [Ms A] indicated it went to the lawyer (the agent).
The agent then told the Tribunal that they are representing the whole family, but that family has run out of money, they are acting pro bono and they are not expected to get paid today or for anything after the hearing (in regard to representing the applicant, his sister and mother).
The Tribunal asked the applicant’s sister, [Ms A], how the money paid to the lawyer helped the applicant in terms of financial support to him in the community, to which she indicated that [Mr I], [Ms D], [Mr E], and [Mr B] will financially support him. The following questions and answers occurred:
Q. [Ms A], do you know these people?
A. Yes.
Q. How do you know these people?
A. Because they friends with my brother so when they meet my brother …so we also have a conversation in Facebook, always like ask me about my brother, how is going, what going on now..
Q. They’re your friends or your brother’s friends?
A. My brother friends.
Q. So why are you talking to them?
A. I’m the little sister of him.
Q. I need you to give me some detail of how you know them. Remember he (brother) was in detention.
A. Because [Mr I] in [Suburb 1], [Mr I] ask me about my brother. He know about my brother because I tell him, on Facebook.
Q. You talked to him on Facebook? You haven’t talked to him face to face?
A. No, face to face. He come to my house, we talk face to face too.
Q. What did he tell you he could do for him?
A. I say to him my brother in trouble now, if he released he cannot work. He say ‘I willing to support him with $100 because enough to support him.’
Q. How often?
A. $100 a week.
Q. What makes you think he will pay that money?
A. Um, maybe because they’re friends?
Q. Is it a debt, is it money that he will then owe him?
A. I didn’t not sure, I think he just donate that money.
Q. Free money? Yes? Or you’re not sure?
A. Yes.
Q. Ok, now when did you talk to [Mr I]?
A. Last week.
Q. At your place? On Facebook? How did you do it?
A. First we say want to meet, its about my brother, it on Facebook, then he come to meet me.
Q. At [Suburb 1], you live in [Suburb 1]?
A. Yep, and then I explained to him about my brother, that he in trouble and everything, and he say he willing to help.
Q. [Ms A] are you married?
A. Yes.
Q. And have a child?
A. Yes.
Q. Are you supporting them (son and husband) financially?
A. Yes.
Q. Where are they?
A. At [Suburb 1], same house.
Q. So are they (husband) working?
A. No, not allowed.
Q. So you’re the only person supporting them?
A. Yes.
Q. You can’t support your brother?
A. No.
Q. And your mother can’t support him?
A. No, no work rights.
Q. [Ms D] and [Mr E], can you tell me why they would financially support your brother?
A. They are brother and sister. I think they work at [Business 1] in [Suburb 2]. I say to [Mr E] say I want to make appointment her about [the applicant]. And then I go to [Suburb 2] and then I told her about [the applicant] and everything and her brother also.
Q. You talk to them?
A. Yes.
Q. Face to face?
A. Yes.
Q. At [Suburb 1]?
A. No [Suburb 2], drove there, to see them.
Q. What about [Mr B]?
A. He met him at [Business 2]. They like best friends, because when they meet they like friendly. And [Mr B] also know about my family.
Q. How do you know [Mr B]?
A. He live at same house at [Address 1].
Q. Live in same house as who?
A. With me.
Q. With you?
A. Yes, same house. But he always go up to [Suburb 2] for work.
Q. [Mr B] goes to [Suburb 2] for work?
A. Yes.
Q. What does [Mr B] do for work?
A. [Mr B], he do house contractor. He paint the house.
Q. Maintenance, building?
A. Yep.
Q. So you live with [Mr B]?
A. Yep.
Q. With your husband and child?
A. Yep. We live in different room.
Q. All in one room, your husband, child and you?
A. Yep, my mum in one room and we in one room.
Q. Where does your brother live?
A. In another room.
Q. So you’re all in the same house?
A. Yep. We have four room.

The Tribunal then spoke to the agent about the individuals who indicated they would give the applicant money, and asked whether there was any evidence these people had actually given him any money, to which the agent indicated that no-one had given the applicant any money at all but that they had given him a commitment about the future.
The Tribunal then asked the applicant how much money he currently held, and whether he had any evidence about how much money he had. In response, the applicant indicated that he did not have any evidence of any savings but that his money was in the hands of ‘other people’ who he asked to hold onto his money which was in a piggy bank that he had and that it had $400 in it.
The Tribunal asked the applicant how long had he been working for, to which he responded that he had been working for two years. However, in further questioning, the applicant indicated that in the two years he had been working, he had not saved his money and had spent it on consumables such as laptops, phones and clothes. Despite this, the applicant maintained that his friends would give him money to support him.
The Tribunal asked the applicant why he had not sought help from the Red Cross or anybody else, to which he responded that he didn’t know.
The Tribunal then telephoned [Mr I], [Ms D], [Mr E] and the applicant’s ‘auntie’ in Malaysia (that is not actually his relative, he just calls her ‘auntie’). Regrettably, the Tribunal was not able to make contact with those individuals to seek information from them in relation to the applicant. However, the Tribunal was able to contact ‘[Mr B]’ by telephone, and the following questions and answers occurred:
Q. Can you tell me about your relationship?
A. Good friends, know each other for a while. He used to stay at my house. His mum and sister stay at my house.
Q. Does he (the applicant) normally live with you?
A. Yes, live with family.
Q. How many people live in your house?
A. His sister, mum, husband, and son that’s all.
Q. Does the applicant live with you normally?
A. Used to but he move out.
Q. How long have you known him for?
A. Long time. More than six months.
Q. How did you know him?
A. Because we live together.
Q. How did you first meet him?
A. At the house, when the family come to live with me.
Q. Who came there first?
A. The family. Mum, sister, brother in law and [son].
Q. So everyone moved in with you at the same time?
A. Yeah but sometime he go to work and stay at other house. Sometime he come to the house.
Q. Has he (the applicant) been working for you?
A. He help me sometimes.
Q. Did he work for you?
A. No.
Q. Did you employ him?
A. No no I don’t employ him.
Q. So did you offer financial support to (the applicant)?
A. I support him because sometime, you know, the family cook for me. Because the mother sometime cook for me and they live in my house. They sometimes help me with some things. So you know like, I just want to help the family back.
Q. I need to clarify, it’s been indicated here that you will pay for (the applicant) and you will pay money to support him, is that correct?
A. Yes.
Q. How much are you going to pay?
A. Its $200 a week.
Q. Is that a loan?
A. It’s not a loan. He help me sometimes with other work. And the family help me. Sometimes I’m not at the house because I have moved out. So they help me with the lawns and that.
Q. You’ve moved out? Where do you live now?
A. I live in [Suburb 2] now.
Q. What do you do?
A. I’m a home handyman.
Q. You’re a home handyman? Are you a registered builder?
A. No I’m registered as a handyman.
Q. Through who?
A. Myself, I work myself.
Q. So you’ve just got a business registration do you?
A. Yes.
Q. Do you have a business name?
A. I don’t have a business name but I have an ABN number to provide to people that I work for. They call me ‘[Mr B] handyman.’ And I usually work mouth by mouth, not just advertise.
Q. Have you given any money to [the applicant]?
A. Yes.
Q. How much?
A. When he helped me and you know helped him sometime when he need, and he asked me, so I can give to him and then he do a bit of work for me.
Q. So how much money have you given him?
A. I can’t remember. Could be, yeah. Could be. Can’t remember exactly how much. Usually when he need help I give to him so I can’t remember how much altogether.
Q. Anything further you want to say about this matter?
A. To be honest, I try to help him out because we are very good friends to each other, with this family you know, and we used to live together, they live in my house, they look after my house, they you know they make around the house clean. I feel like help in return. It’s not that I try to do something wrong, you see….
The Tribunal then spoke to the applicant.
Q. Do you have any debts?
A. No.
Q. You don’t?
A. No.
Q. Are you sure?
A. Debts in Malaysia?
Q. Debts here (Australia).
A. I don’t owe any moneys to my friends.
Q. Do you owe any money to anybody?
A. No.
Q. Are you sure about that?
A. Yeah, sure.
Q. I have a document here dated [in] October 2017 from [Debt Recovery Agency 1]. So there is information before the Tribunal that would be a reason for affirming the decision in this case. So I’ll explain that information carefully so you can understand it and understand why it is relevant to my decision. I’ve asked you whether you’ve got any debts in Australia, yet I’ve got this letter from 6 October 2017 addressed to you at [Address 2] at [Suburb 1]. So I’ll tell you about this information and then I’m going to ask you to comment on the information, and then tell me if you don’t understand the information or if you don’t understand why it is relevant to you. If you want more time to comment on or respond to the information please tell me. I’ll then consider whether to adjourn to the hearing to give you more time. So the following information I’d like you to comment on is a letter from [Debt Recovery Agency 1] who is a debt collection agency. It says in that letter that you owe money to [Business 3]. Did you have [an account with Business 3]?
A. Yes. That account is an account shared between me and my friends.
Q. It’s addressed to you?
A. Yes they used my name.
Q. Well, there is a debt collection agency that is after you for $2336.74 as [October] last year. So the reason why that information is relevant is because that is relevant to your ability to support yourself financially. So if you have debts of that magnitude, and that is not a small bill, that is a substantial [bill], how do you propose to service that debt?
A. I ask one of my friends to fork out money.
Q. Who?
A. The person who shared this account with me.
Q. Yes but this account is addressed to you. You are responsible.
A. I will call him for money.
Q. The debt collection agency is not going after anyone but you. So even if you did get money from [Mr B] and your friends you still have at least that debt to service, and any others.
A. I will call my friends to transfer money.
Q. Just so I’m clear, do you understand why that information is relevant to that situation?
A. Because they use my name.
Q. Well, the reason why the substantial debt is relevant is because if you’ve got a significant amount of debt, and that is just from one [bill], the consequences of that is that it may lead the Tribunal to consider that even if you got money from [Mr B], $200 a week, is that enough to financially support you? Just so I’m being clear about the consequences of the information being relied on in this sense and it would be part of the reason for affirming the decision under review. Which is why I’m inviting you to comment on or respond to that information and if you need additional time to comment on or respond to it please tell me.
A. I need some time.
Q. How much time would you like?
A. Probably ten minutes.
Q. Sure granted. [hearing resumed after 10 minutes] What would you like to say?
A. Regarding the debts, can I first know about the address that appears on the letter.
Q. [Address 2] [Suburb 1].
A. Probably when the letter arrived at the address, I’ve already moved out therefore I did not have any idea about the letters. Can I ask for a letter from the agency so I can contact the debt collectors to get a payment plan?
Q. Yes, but recalling that this letter has come from your direction – that letter has come from you. You should have that already.
A. [The applicant indicated he had no idea why the Tribunal had a letter addressed to himself as part of his protection application]. Probably the [agent], because I’ve no idea about the letter.
Q. So how did [the agent] get the letter?
A. I do not know. Because [the agent] did not inform me….
Q. That letter is here on the file, that’s why I brought it to your attention. It’s addressed to you and there is a debt that’s in your name, and you’re telling me you never got the letter, is that right?
A. Yes.
Q. Ok. Is there anything you would like to say?
A. No. The only thing is I need to find out more about this letter so I need to find out what he did.
The Tribunal then put to the applicant its concerns.
Q. So, while I haven’t made up my mind, the concerns I’ve got are, you have a demonstrated track record of working when you don’t have permission to work and you’ve admitted as such. And that may lead the Tribunal to consider that you will work again. That’s the first thing. Is there anything you want to say about that?
A. At the time when I worked, I was quite confused as to whether I’m allowed to work or not. If I have known that I’m not allowed to work I would not have approached the police station to make a report that someone has injured me.
Q. What do you mean by that?
A. I have lodged a report about an incident. Someone has [assaulted] me. This case is pending a court hearing.
Q. So there is a criminal matter ongoing in relation to you but you are saying you are the victim is that correct?
A. Yes.
Q. With [the police]?
A. Yes.
Q. Has it been raised prior to now?
A. Yes.
Q. How does what you are saying relate to your work and the fact that you’ve worked previously without being given permission to work? How does that relate?
A. What I mean is, this shows that I was confused. And my agent they took my money and they did not do the right things. They have done this to other people. They collect the money and they claim they can work out the visa for them and then they absconded. The immigration officer told me the reasons in order for me to trust him.
Q. So that situation, in terms of your demonstrated track record of working when you did not have permission to, that’s one thing, but another concern to the Tribunal although I have not made up my mind is that you’ve provided information saying to the Tribunal that people can pay for you to support you into the future. So we tried to call the people today. Of all the people you asked me to ring I could only speak to [Mr B]. And he said to me he is prepared to give you $200 per week. The concern I have are the inconsistencies in the information between what you told me [Mr B] has done in relation to you and what [Mr B] has said he has done in relation to you. So, you told me [Mr B] paid you. [Mr B] said he never employed you but you said you worked for him.
A. What he meant was, he pay me the $200 to me because I’m nice to him and sometimes I try to help him clean up his house.
Q. I also note that you have not given me any evidence that any of those people have given you any money. You’ve given me information that one person, [Ms J] in Malaysia (the ‘aunt’ in Malaysia) has given money to pay your agent. Some money. But no money to support you financially – that’s the issue. What do you say?
A. [no response]
Q. So the concern the Tribunal has, although I haven’t made up my mind, is that the evidence of you being supported by people in the community, in terms of financial support, there is not a lot of it. And that may lead the tribunal to believe that you will not be able to financially support yourself in the community if you were to be granted a bridging visa. What would you like to say?
A. (The applicant indicated he had to wait to contact the parties he claimed would support him).
Q. I tried to ring them.
A. They probably working.
Q. I need to be able to talk to them. The other concern is in relation to your apparent debt levels, in your name, that even if someone, [Mr B], gave you some money to support yourself it may be insufficient to support you financially. What would you like to say?
A. It’s what I’ve mentioned before. I need to call to the debt agency to talk about the debts and the payments.
Q. Anything you would like to say?
A. No.
Q. In terms of the relevant conditions, as the delegate has said he was not satisfied you would comply with condition 8101 (that’s not to work). In the Tribunals case, although it has not made up its mind, that is the relevant condition that you would have to abide by and at this stage has concerns about your ability to abide by condition 8101. What have you to say?
A. When can I get a final outcome?
Q. I’m going to go away and think about everything and get you a decision.
Submissions of 27 July 2018
On 27 July 2018, the agent provided to the Tribunal:
a. a bank statement for the account of ‘[Ms J]’ from [a particular bank] for the statement dates between 16 April 2018 to 15 May 2018.
b.a statement purportedly from [Ms D] written in both Bahasa Malaysian and English (undated).
c.a copy of a Bridging Visa Grant Notice for [Ms D] with the visa grant date of 15 November 2017.
d.a partial copy of a payslip dated 12 July 2018 for [Ms D] (no details of the employer).
e. a statement purportedly from [Mr I] written in both Bahasa Malaysian and English (undated).
f.a copy of a payslip dated 16 July 2018 for [Mr I].
g.a statement purportedly from [Mr E] written in both Bahasa Malaysian and English (undated).
h.a copy of a Bridging Visa Grant Notice for [Mr E] with the visa grant date of 15 November 2017.
i.a copy of a statement from [the applicant’s mother] dated 16 July 2018.
j.a copy of an order made by Judge Mercuri, Federal Circuit Court, on 20 July 2018 in relation to applicant “DEB18”.
Submissions of 29 July 2018
On 29 July 2018, the agent provided to the Tribunal:
a.a copy of the passport for [Mr B].
b.a statement purportedly from [Mr B] dated 27 July 2018.
c.written submissions from the agent dated 27 July 2018.
In the agent’s written submissions dated 27 July 2018, there is significant discussion in relation to the personal circumstances of the applicant, including his reasons for coming to Australia in the first instance and his explanation as to why he did not submit in time an application to the Tribunal to review his protection visa decision from the Department. The Tribunal notes that these matters will be considered further at the Federal Circuit Court. However, for the purposes of the current matter, the Tribunal notes the following relevant part of the submissions, in summary, from the agent:
a.the assertion that the applicant was ignorant of his unlawful status, because in June 2018 he attended the [Suburb 1] police station to report an assault against him by a former friend, and that had he been aware of his unlawful status, he would not have attended at a police station for fear of being apprehended.
b.At all times, [the applicant] was under the impression that he and his family held Bridging visas permitting them to lawfully remain in the community and work.
c.the documents provided show that the applicant will get financial support from his friends.
d. [Mr B] is the applicant’s former employer.
e.the agent is acting on a pro bono basis and is not charging the applicant for any work they do.
Submissions of 31 July 2018
On 31 July 2018, the agent provided to the Tribunal:
a.a copy of a receipt of a money transfer dated 30 July 2018 from [Ms J] in Malaysia to [Ms A] in Australia in the amount of $312 Australian dollars.
b.a copy of a receipt of a money transfer dated 18 July 2018 from [Ms J] in Malaysia to [Ms A] in Australia in the amount of $2321 Australian dollars.
c.a copy of a letter dated 26 July 2018 from [a particular individual] of [Health Services Provider 1] in respect to [Ms A].
d.a copy of a letter dated 26 July 2018 from [a particular individual] of [Charitable Organisation 1] in respect to [Ms A].
The Tribunal notes the following relevant part of the submissions, in summary, from the agent:
a.The applicant contacted all three witnesses whom he intended to call at the hearing and they all advised that they had been available and expecting to give evidence to the Tribunal at 9:30am, however by 12:00pm when the Tribunal called them they had returned to work and were unable to attend the call. All wished to confirm their ongoing commitment to providing the applicant with financial support.
b.The applicant wishes to clarify that he has been offered both accommodation (at [Address 1]) and financial support by [Mr B] upon his release from detention – thus that he will not have rental expenses to attend to on his release.
c.While she gave evidence that she was unable to ‘support’ the applicant on his release, his sister [Ms A] has access to funds through community support from [Charitable Organisation 1], [Health Services Provider 1] and other organisations, which (given that the applicant will be living in the same home) she is able to apply to their common expenses, such as bills and food.
d.[Ms A] contacted [Debt Recovery Agency 1] on behalf of her brother, stating that she had written authority to speak with them on behalf of her brother who was in immigration detention – however was told that given the sensitive nature of their dealings with him, they could not speak with her, absent a power of attorney made in her favour.
e.The applicant’s ‘auntie’, [Ms J], made another transfer in the amount of AUD $300 to cover [Ms A]’s accommodation and travel expenses related to her attendance at the applicant’s hearing.
Assessment of evidence and findings
The Tribunal’s assessment of the evidence and findings is as follows.
It is clear from the applicant’s own evidence at hearing that he understood that mandatory condition 8101 meant, if he got a bridging visa E, he would not be allowed to work. It is equally clear from the applicant’s own evidence at hearing that he worked in April 2018, and he knew at that time that he did not hold a visa to remain or work in Australia. The Tribunal does not accept the submission that the applicant’s decision to report an assault to the police indicates he was ignorant of his unlawful status. Accordingly, the Tribunal finds that when the applicant was working in April 2018, he knew at that time that he did not hold a visa to remain or work in Australia.
The Tribunal considers it to be unlikely that the applicant will receive financial support in the community if he was to be granted a bridging visa E.
In regards to the statements from [Ms D], [Mr I] and [Mr E], during the hearing when questioned about the statements, the agent herself acknowledged that they were not done by a NAATI-accredited translator. In further questioning, the agent actually indicated that she herself, with the best of intentions, had done the translations using “Google translate” and that she got the individuals to sign the statements. In addition to the fact that the Tribunal was unable to contact [Ms D], [Mr I] and [Mr E] to verify their identity or their purported statements, the Tribunal places no weight on the statements purportedly provided by [Ms D], [Mr I] and [Mr E] and does not accept that [Ms D], [Mr I] and [Mr E] will provide any financial support to the applicant in the community if he were to be granted a bridging visa E.
Likewise, given the applicant’s evidence and the applicant’s sister’s own evidence at hearing that his mother and sister cannot give him financial assistance, the Tribunal does not accept that either [Ms A] (the applicant’s sister) or [the applicant’s mother] will provide any financial support to the applicant in the community if he were to be granted a bridging visa E.

Likewise, given the applicant’s evidence at hearing, the Tribunal does not accept that either [Mr G], [Mr H] or [Ms F] (the applicant’s apparent girlfriend in Malaysia) will provide any financial support to the applicant in the community if he were to be granted a bridging visa E.
The Tribunal holds concerns in regards to the suggestion that the applicant’s ‘auntie’ [Ms J] (who the applicant is not related to and who is apparently a friend of the applicant’s mother back in Malaysia) will financially support the applicant in the community if he were to be granted a bridging visa E. The Tribunal notes the earlier proposition that the money transferred from the applicant’s ‘auntie’ [Ms J] to his sister was for the purpose of financially supporting the applicant in the community. It then transpired that the money from the applicant’s ‘auntie’ [Ms J] actually went to pay the applicant’s representative (who is a lawyer and migration agent), and it was not actually used to financially support the applicant in the community. This was not mentioned in the agent’s earlier submissions. To the contrary, the agent in their submission indicated that they had not been paid and that they were acting for the applicant on a ‘pro bono’ basis. It was only at the hearing that the applicant’s sister indicated that she had used the money from the applicant’s ‘auntie’ [Ms J] to pay the applicant’s representative. At that point, the representative indicated she had been paid but did not know how much she had been paid. The representative indicated that even though she had been paid that money, there would be no further charges to the applicant (or his mother or sister) for any further assistance. In any event, the Tribunal tried to telephone the applicant’s ‘auntie’ [Ms J] in Malaysia but was not able to contact her to obtain evidence in relation to any of the issues raised. Accordingly, the Tribunal accepts that the applicant’s ‘auntie’ [Ms J] has made money transfers to the applicant’s sister. While the Tribunal accepts that it is perfectly reasonable that the representative should wish to have some payment for the work they do, the Tribunal considers that any money the applicant’s ‘auntie’ [Ms J] pays is more likely to be used for purposes other than to provide financial support to the applicant in the community. Accordingly, the Tribunal does not accept that the applicant’s ‘auntie’ [Ms J] will financially support the applicant in the community if he were to be granted a bridging visa E.
The Tribunal holds concerns in regards to the suggestion that the applicant’s friend ‘[Mr B]’ will financially support the applicant in the community if he were to be granted a bridging visa E. The Tribunal notes that the starting point for the submissions in regard to [Mr B] was that he was a previous employer and good friend of the applicant who he initially met at the [Business 2] in [Suburb 1]. It then transpired that the applicant had actually met [Mr B] when he and his family members (mother, sister, brother-in-law and baby nephew) moved in with [Mr B] at his house in [Suburb 1] and that [Mr B] had never employed the applicant. In regards to [Mr B]’s work situation, the starting point for the submissions was that [Mr B] was a builder who worked in construction and maintenance with his own business. It then transpired that [Mr B] was not a registered builder, he did not have a business name, he was self-employed, that he did not advertise his business and got work by word of mouth. It also then transpired that [Mr B] was unsure about how much money he has ever given to the applicant. Finally, [Mr B] indicted that, to be honest, he did not try to do something wrong and that he was just trying to help the family. Even if the applicant were to live rent free with [Mr B], given the above, the Tribunal does not accept that [Mr B] will financially support the applicant in the community if he were to be granted a bridging visa E.
Accordingly, the Tribunal finds that applicant will not get any financial support in the community if he were to be granted a bridging visa E.
In addition, despite working for two years the applicant has no savings except for $400 in cash that a friend is holding for him.
In addition, the applicant is being chased by the debt collection agency [Debt Recovery Agency 1] for the amount of $2336.74 for his unpaid [Business 3] phone bill.
Given the above circumstances, the applicant’s lack of financial support, lack of savings and high level of debt cause the Tribunal to find that the applicant will not have financial support in the community and would need to work out of sheer necessity in order to support himself.
Accordingly, the Tribunal finds that the applicant would not comply with mandatory condition 8101.
Whether the applicant will abide by conditions - cl.050.223
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.
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].
The Tribunal does not accept that the 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].
As indicated above, the Tribunal has found that clause 050.613A in Schedule 2 of the Regulations applies to the applicant’s situation. This clause prescribes that mandatory condition 8101 be imposed. The Tribunal finds that the applicant would not comply with mandatory condition 8101.
For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Joseph Lindsay
Member

[2018] AATA 3507

2 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice