1824320 (Migration)

[2018] AATA 4081

1824320 (Migration) [2018] AATA 4081 (30 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1824320

MEMBER:Meena Sripathy

DATE:30 August 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 30 August 2018 at 4:31pm

CATCHWORDS
Migration – Bridging E (Class WE) – Subclass 050 (Bridging (General) – Whether the applicant will abide by visa conditions – Unlawful citizen for over 12 years –  Working in Australia – Credibility issues Inconsistent evidence about her living arrangements and finances  – Current protection application – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 73, 183
Migration Regulations 1994, Schedule 2 cls 050.212, 050.221, 050.223 Schedule 8 Conditions 8101, 8401, 8505, 8564

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 applied for the visa on 17 August 2018. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, which are set out in Part 050 of Schedule 2 to the Migration Regulations (the Regulations). Relevantly to this matter, the primary criteria include cl.050.223.

3. The decision to refuse to grant the visa was made on 20 August 2018 on the basis that the delegate was not satisfied that the applicant will abide by conditions if granted a BVE. The applicant appeared before the Tribunal on 28 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A].  The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The applicant’s registered migration agent was not present at the hearing.

4. The issue in this case is whether the applicant will abide by conditions imposed on the visa.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background and History

6. The applicant arrived in Australia on [date] March 2005 as the holder of a Student Guardian (Subclass TU 580) visa that was valid until [date] December 2005. On 9 August 2018 she was located by Australian Border Force officers at her residence in [Australian suburb 1] NSW. She was identified as unlawful non citizen and interviewed and subsequently detained under s189 of the Migration Act and taken to [Immigration Detention Centre 1]] where she currently remains.

7. On 16 August 2018 she applied for a permanent visa, and on 17 August 2018 an application for an associated Bridging Visa E (BVE) was triggered given she is in immigration detention. That application was refused by an officer of the Department on 20 August 2018 and it is that refusal decision which is the subject of the present application for review.

8. Documents included in the Department papers provided to the Tribunal indicate that the applicant was interviewed in a Located Person Interview on 9 August 2018 and there is a record of this interview. The applicant indicated in her responses at this interview that she is a Chinese born, Chinese national and has never been refused or had a visa cancelled. She indicates she has a daughter in Australia, [Ms B], who resides at the same address.  The applicant indicates that she has lived at this address for 5-6 years.  The applicant indicates her employment history, referring to two jobs held since January 2018 at a [Workplace 1] and [in another role].  In response to a question whether she can support herself without working, she states that she cannot.  She states that in 2005 she paid someone RMB 50,000 (AUD9887) to organise her visa to come to Australia.  The child went back to China but she did not want to because she had not earned enough money to recover her costs and now she needs to work to earn enough for her daughter’s school fees.  It is also indicated that she has AUD $50,000 in a [Bank 1] account and AUD $500-600 in cash.  She states that she intends to apply for a visa in Australia if she can.  She states she cannot return to her home country because her husband is sick and has mental health problems and she does not want to see him.

9. In response to additional questions the applicant stated that she did not report to Immigration to regularise her status because she did not want to go home as she had not made enough money. When asked if she understands that without a visa she is an unlawful non citizen and not permitted to work, she answered yes.  She stated “please help me I need to stay and work and help pay my daughter’s school fee”.  She indicated she would report to Immigration. When asked if she was not located what would she have planned to do, she said she would continue working.  

10. The applicant was further interviewed upon arrival at [Immigration Detention Centre 1] on 10 August 2018 and notes of this interview are also contained in Departmental papers. She provided information about her daughter in Australia and a husband and [siblings] in China.  She indicated she has some $30-40,000 in savings in the [Bank 1]. She indicated her past employment.

11. The delegate’s decision record indicates she was interviewed by the delegate on 20 August 2018.  Details of the evidence she provided are included in the attachment to the delegate’s decision, a copy of which the applicant provided with her review application. The Tribunal notes that the information she gave at the earlier interviews is also referred to in the delegate’s decision record.

12. The delegate considered the following conditions which would be imposed on the visa, 8101, 8401, 8505, 8564 and having considered the information provided by her and on departmental databases, was not satisfied that she would abide by conditions. 

13. At the hearing the applicant confirmed that she has lodged a protection visa and will be interviewed in relation to that application on 31 August 2018. 

14. The Tribunal explained the issue before it is whether she would abide by conditions imposed on the visa and explained the conditions it considers relevant, being the same conditions considered by the delegate (8101, 8401,8505 and 8564) and explained each of these to her.

15. The Tribunal asked the applicant about her migration history.  She stated she came to Australia in 2004 on a visitor visa and then went onto a bridging visa.  When queried that the delegate’s decision indicates she arrived on 22 March 2005 on a Student Guardian visa and had no other visa after it expired at the end of December 2005, she agreed she came to be the guardian of her nephew who was under 18 years old. When asked when the visa expired she said it may have been at the end of that year.  She said the person who arranged the visa for her, a friend of her brother in law in China told her that she can stay for 5 years on that visa.  When asked for more details about this person, she said her brother in law has since passed away. The applicant confirmed she had not applied for any other visa until she was located by immigration and brought into detention.  She confirmed that she never approached Immigration until she came into detention this year.

16. The Tribunal asked the applicant what she was doing between 2005 and 2018 in Australia,  specifically how she survived financially.  She said she did not work.  She had a friend who looked after her.  Her friend’s name is [Ms A Alias 1] and she met her through her nephew who was living at her place.  The applicant also stayed at this address with her nephew and [Ms A Alias 1] when she came to Australia and this is how she came to know [Ms A Alias 1].  She lived with her for several years until [Ms A Alias 1]’s child was born, in 2005 and then [Ms A Alias 1] moved out.  The Tribunal queried how she could have stayed with her for several years if she arrived in Australia in 2005 and the child was born that same year? The applicant said she is not sure but [Ms A Alias 1]’s son is now 13 years so he must have been born in 2005.

17. The Tribunal asked the applicant why she came to Australia.  She relayed her story that she tried to buy a new house in China in 2003 but was cheated by the property developer. She complained to the government department and security bureau but they all refused her.  She was told that if she took further proceedings she will be put in jail. Her ex-husband became quite mentally unwell because of this.  She was very afraid and took the opportunity when it came to get out of China and came to Australia.  She did not have any plan she just wanted to get out of China. She brought some money with her. When asked how much she hesitated at first, but then said people are allowed to bring $10,000 and that is what she brought. She put the money in a bank account and used it.

18. The Tribunal asked the applicant if she has worked in Australia.  She said she has done some casual work only when her friend had an injury, she worked to help out.  When asked how she managed financially she said he met a man, who became her boyfriend and he supported her. Regarding her nephew, the applicant said she does not know where he is now.  He stopped living with her when he turned 18 years and she does not know whether he remained in Australia or returned to China. She confirmed that she has a daughter in Australia. She came here in 2016. She is studying a cookery course and works 20 hours a week. The applicant said her daughter’s student visa was arranged by her father.  When queried that she earlier stated he suffered mental health issues, she agreed, saying that he only has the mental capacity of a 2 or 3 year old.  She said her older [siblings] also helped get her daughter the student visa. 

19. Prior to being detained the applicant lived with her daughter and boyfriend, [Mr C], in a rental unit in [Australian suburb 1]. Her boyfriend paid the rent. He worked in [a certain] industry. He was also unlawful and is also in immigration detention. She does not know what applications he has made.  She believes he is looking for a lawyer still.

20. Regarding the unit they rented, she said her daughter told her that she will get some classmates to move in and keep the apartment. 

21. The Tribunal asked the applicant if she has any money in her bank account. She responded that she has several hundred dollars only. The Tribunal put to her that she said previously to the Department that she had an account with $50,000. She said this money is for her daughter’s school fees.  She has paid the fees and now there is only about $30,000 left.  The few hundred is what she has for herself.

22. At this point the Tribunal put to the applicant that the information she has given at this hearing is very different to information she previously gave the Department. It put to her that at the interview when she was first located, on 9 August 2018, she stated that she had two jobs and provided details of these, whereas today she has said she did not work, except for some casual work and the Tribunal may have concerns about her truthfulness given this inconsistency.  In response the applicant denied she said at the interview that she worked two jobs. 

23. The Tribunal put to her that she also said in this interview that she paid someone RMB 50,000 to get a visa to come to Australia and she did not return because she had not made enough money and cannot go back now because of this.  The applicant in response, denied that she said this to the Department.  The Tribunal stated again that her response about money in the bank given at the interview with the Department where she said she has $50,000 in a [Bank 1] account is different to what she said today and these inconsistencies may lead the Tribunal to have doubts about her truthfulness and reliability as a witness. In response she said this money is for her daughter’s school fees and now it is only about $30,000 left.  She again denied saying to the Department that she cannot go back to China because she has to work.

24. The Tribunal asked the applicant how she will support herself if released from detention and has no permission to work. She said her friend [Ms A Alias 1] will support her. She will live with her and [Ms A Alias 1] will provide for all her needs. When asked why [Ms A Alias 1] would do this, the applicant said they are close friends. [Ms A Alias 1] had difficult times in the past and the applicant supported her.  They lived together for some years. They maintained their connection even after they stopped living together and see each other several times a week. She stated [Ms A Alias 1] has visited her in detention and told her she will support her.  [Ms A Alias 1] has her own business and lives in a house and she can stay with her. The Tribunal asked the applicant why [Ms A Alias 1] has not provided any evidence and why she is not here today.  The applicant said she is at work.  The Tribunal asked if it could ring her now.  She agreed and provided the phone number.

25. The Tribunal rang the mobile phone number provided by the applicant. The woman who answered indicated she was present at the Tribunal. She came into the hearing and the Tribunal took oral evidence from her. The witness stated her full name was [Ms A] and that she is also known as [Ms A Alias 1]. She stated her date of birth. She confirmed she knows the applicant through the applicant’s nephew who was sharing an apartment with her. The witness said she met the applicant in China during a visit on the nephew’s suggestion, and when she came to Australia she lived with her.  They lived together until just after her first son was born in [date] 2005. The witness believed the applicant came to Australia in 2004 (well before she was pregnant) and they lived together for at least 2 years, but was sure they stopped living together soon after her son’s birth.  After they ceased living together they remained friends and regularly see each other.  The witness was aware the applicant subsequently lived at another address in [Australian suburb 2] and then in [Australian suburb 1]. She was aware she lived with her daughter.

26. The Tribunal asked the witness about her circumstances. She stated she lives in a 3 bedroom house in [Australian suburb 2] with her boyfriend and two children [age] and [age] years.  She owns the property and has a mortgage.  She is self employed and has an [business], earning approximately $1300 per week. Her boyfriend is a [occupation] and earns more than her each week.

27. The Tribunal asked the witness if she is prepared to support the applicant and why. She confirmed that she is because of their long standing friendship and the support she gave to her in the past. She recounted a story of difficulties she endured at the time of her son’s birth and the applicant’s support of her.  The witness stated that the applicant can stay with her and she will provide her meals.  When asked if she knew how the applicant supported herself before she was detained the witness stated that she believed she had some savings from China and her sister also helped her.  When asked why she would support the applicant rather than the applicant’s daughter, the witness said the applicant told her the daughter prefers to stay with her classmates and can support herself now because she has permission to work.

28. The Tribunal asked the witness if she is prepared to provide a financial security to guarantee the applicant’s compliance, given her adverse migration history. She said she is prepared to give a security, depending on how much is asked for. When asked if she could provide a security of $10,000 she indicated she could. The Tribunal invited the witness to provide documentary evidence to support her evidence about her financial circumstances, including proof of property ownership, bank statements and evidence of employment.

29. Following the witness’s evidence the Tribunal put to the applicant that [Ms A] confirmed that her son was born in December 2005 and given that she arrived in Australia in March 2005 it does not appear that she could have lived with her for 2 years as they have both stated.  The applicant repeated that she believed she came in 2004 and they lived together for 2 years. 

30. The Tribunal formally put to the applicant particulars of adverse information and explained the relevance and the consequence of relying on it and invited her to comment or respond, explaining that she can do so immediately or ask for additional time.  It put to her that she told the Department, at interview after she was detained, that she worked 2 jobs and cannot support herself without working.  She also told the officer she paid RMB 50,000 to get her visa to come to Australia and could not return because she had not earned enough to pay off her debt and now needs to pay for her daughter’s school fees. She said at the interview that if not caught by the ABF she would have continued to work. The Tribunal told the applicant that she also repeated to the delegate at the interview in relation to this application that she worked on and off while in Australia.   The Tribunal explained that all of this information is relevant because it is inconsistent with her evidence today that she has not worked in Australia and if relied on the Tribunal may find her not to be a credible witness and not accept she would abide by the no work condition and affirm the decision under review. The applicant, in response, denied that she said these things to the Department.  She stated that if she is released she will not go out and work. 

31. Following the hearing the applicant’s registered agent provided the following documents:

    ·A one page list of transactions from 11 July to 14 August from a [Bank 2] account.  Later that day, a further page was submitted purportedly attributing this account number to [Ms A].   

    ·A 2017 Rates notice addressed to [Ms A].

    ·2015, 2016, 2017 Income Tax Assessments for [Ms A].

    ·AGL Bill addressed to [Ms A] due 18 April 2018.

    FINDINGS AND REASONS

32. At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.

33. In this case, as the applicant has applied for a permanent visa she meets cl.050.212(3) at time of application. At time of decision the Tribunal is satisfied that her application continues to be pending and therefore she continues to satisfy this criterion at time of decision. 

    Whether the applicant will abide by conditions - cl.050.223

34. 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.

35. 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].

1. 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.

2. Relevantly, for this case, cl.050.617 applies and indicates that any one or more of the prescribed conditions may be imposed on the applicant’s Bridging visa; that is, they are all discretionary and none are mandatory. The delegate indicated the following minimum conditions 8101 (no work), 8401 (report as directed) 8505 (reside at specified address) and 8564 (must not engage in criminal conduct).  The Tribunal also considers that these conditions should be imposed in the circumstances of this case.

3. The Tribunal has carefully considered all of the information before it and relevant factors in the context of assessing whether it is satisfied that the applicant will abide by conditions imposed on the BVE.

4. The Tribunal has considered the applicant’s immigration history as disclosed in the documents on the Tribunal file and the applicant’s oral evidence.  On the basis of this evidence it finds that she arrived in Australia on 22 March 2005 as the holder of a student Guardian visa Subclass 580, valid to 31 December 2005. It finds that she was located by ABF officers at her home and subsequently detained.  It finds that prior to being located by the ABF she never approached the Department or applied for any visa.  The applicant, on these findings, was living without a visa in the Australian community for over 12 years.

5. The applicant stated several times during the hearing that she did not work in all the years she was living in Australia without a visa.  She stated that she was ‘looked after’ by her friend [Ms A Alias 1] and later her boyfriend, and only worked a few days here and there when ‘her friend’ was injured. She stated that her boyfriend with whom she lived was also unlawful and detained with her at the same time.  However her evidence about working is inconsistent with what she previously told Department officers in interviews, when she admitted to working and provided particulars of specific jobs.  The Tribunal notes that the applicant denied saying this when it was put to her for comment.  The applicant also told the Department in her earlier interviews that she had $30-40,000 in a savings account, whereas she told the Tribunal she only had several hundred dollars in savings.  When this inconsistency was put to her for comment she acknowledged having these funds but stated that they were for her daughter’s school fees and not available for her. Given these inconsistencies and the implausibility of her not working to survive for all of these years, the Tribunal rejects the applicant’s denial that she worked in Australia.  It considers it more likely that she did work and accumulated these savings by working.  It is concerned by her lack of truthfulness to the Tribunal on this matter and considers this reflects poorly on her credibility.

6. The applicant claims that if released from detention she would live with her friend [Ms A Alias 1] who would fully support her.  The Tribunal notes that initially when it asked her why she had not  provided any evidence from this person or asked them to given evidence at the hearing, the applicant stated that she was at work.  It was only when the Tribunal, at its own initiative, asked to contact this person, that it became apparent that ‘[Ms A Alias 1]’ ([Ms A]) was in fact in attendance at the Tribunal and willing to give evidence.

7. The Tribunal has considered the oral and documentary evidence provided by [Ms A].  It acknowledges that [Ms A] confirmed her friendship with the applicant to the Tribunal and her intention to support the applicant if released, including being prepared to provide a financial security.  However, despite this, the Tribunal has concerns about this witness’s evidence. The Tribunal finds the circumstances of her attendance at the Tribunal hearing without the applicant’s prior knowledge to be curious and suspicious.  It does not find credible or plausible her offer to fully support the applicant for an indefinite period, on the basis of support purportedly given by the applicant to [Ms A] at the time of her first pregnancy some 13 years ago and an intermittent friendship since then. There is no evidence that [Ms A] and the applicant are related to each other or that she has any other obligation to support her.  [Ms A] gave the Tribunal an address she claims to reside at which she claimed is the address the applicant will live at with her.  However, the documents submitted following the hearing do not support that [Ms A] resides at this address.  In fact the address is referred to in her 2015/2016 tax return as an investment rental property.  The Tribunal acknowledges that the evidence supports that [Ms A] is the owner of this property, but it is not satisfied on the evidence provided that she in fact resides at this address now with her family as claimed. The Tribunal also has a concern about a transaction in [Ms A]’s [Bank 2] account showing a deposit of $6000 on 14 August, days after the applicant’s detention, with a reference “Pymt [to the applicant] transfer” and the source of these funds.   Having regard to the adverse assessment of the applicant’s credibility referred to above,  together with these concerns, the Tribunal is not satisfied that the applicant will be supported by [Ms A] as claimed or reside at the claimed address if released from detention.  In the absence of any other evidence of how the applicant will be financially supported, the Tribunal is not satisfied that she will not engage in work.

8. The Tribunal takes into account that this is the first time the applicant has been detained by Immigration since the expiry of her visa at the end of 2005.  She appears to have cooperated with the Department initially and it considers she was honest in her responses at her early interviews with the Department. She has lodged an application for a protection visa which is pending before the Department and therefore has reason to keep in contact and to engage with the Department.  However the Tribunal has serious concerns about the applicant’s truthfulness in her evidence before the Tribunal and the credibility of her claims regarding support from [Ms A]. Together with its concerns that she has worked unlawfully in the past, the length of time she remained unlawful in Australia and the involuntary nature of her eventual detection, the Tribunal is not satisfied that it is likely she will comply with conditions.

9. The Tribunal has considered whether the applicant is likely to abide by conditions if a security is required and acknowledges that [Ms A] in her oral evidence to the Tribunal indicated her willingness to provide a financial security.  However, having carefully considered all of the material before the Tribunal and given the above credibility concerns,  the Tribunal is not satisfied that she will comply with conditions regardless of any security that may be imposed.

10. 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. 

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

12. 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

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

    Meena Sripathy
    Member