1825188 (Migration)

[2018] AATA 4436

1825188 (Migration) [2018] AATA 4436 (6 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1825188

MEMBER:Nathan Goetz

DATE:6 September 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 06 September 2018 at 10:50am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – conditions imposed on visa – failure to notify residential address – failure to attend department to regularise migration status – failure to declare criminal history – seriousness of offence – engaged in employment – no work rights – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 269, 424AA

Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.223, 050.613A, Schedule 8, Conditions 8101, 8401, 8505, 8564

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289

Liu v MIAC [2008] FMCA 725

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act) and a decision made by an authorised officer relating to requiring a security under s.269 of the Act.

2. On 28 August 2018, the delegate refused to grant the bridging visa to the applicant because the delegate was not satisfied that the applicant would abide by conditions which would be imposed as a condition of the bridging visa.

3. On 29 August 2018, the applicant filed an application for review of this decision with the Tribunal. The applicant appeared before the Tribunal by audio-visual link from immigration detention on 4 September 2018 to give evidence and present arguments in support of being granted the visa. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

   RELEVANT LAW

4. 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).

5. Relevantly to this matter, the primary criteria include cl.050.212(3) which requires that the applicant has applied for a substantive visa that has not been finally determined, or that he will apply for a substantive visa.

6. 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.

7. Clause 050.613A provides for the conditions which may be imposed on a bridging visa which may be granted in the circumstances of the applicant.

8. Condition 8101 (No work) is a mandatory condition and must be imposed on the applicant, but the Tribunal has discretion to impose other conditions on the applicant. These discretionary conditions are: 8201 (the holder must not engage, for more than 3 months, in any studies or training); 8207 (the holder must not engage in any studies or training in Australia); 8401 (the holder must report at a time or times; and at a place specified by the Minister for the purpose); 8505 (the holder must continue to live at the address specified by the holder before grant of the visa); 8506 (the holder must notify Immigration at least 2 working days in advance of any change in the holder's address); 8507 (the holder must, within the period specified by the Minister for the purpose pay; or make an arrangement that is satisfactory to the Minister to pay; the costs (within the meaning of Division 10 of Part 2 of the Act) of the holder's detention)); 8508 (the holder must make a valid application for a visa of a class that can be granted in Australia, within the time specified by the Minister for the purpose); 8510 (Within the time specified by the Minister for the purpose, the holder must, either show an officer a passport that is in force; or make an arrangement satisfactory to the Minister to obtain a passport); 8511 (Within the time specified by the Minister for the purpose, the holder must, show an officer a ticket for travel to a country other than Australia that the Minister is satisfied will allow the holder to enter on his or her arrival): 8512 (the holder must leave Australia by the date specified by the Minister for the purpose) and 8548 (the holder must not engage in any studies or training in Australia for more than 4 months).

9. While the Tribunal has discretion to impose conditions 8116 (The holder must not work in Australia other than by engaging in an activity specified in a legislative instrument made by the Minister for this clause), it can only do so if the applicant is a class of person specified by the Minister for this subclause. The Tribunal also has discretion under cl.050.618 to impose condition 8564 (the holder must not engage in criminal conduct). There is no evidence before the Tribunal that the applicant is in a class of person specified by the Minister for this subclause.

10. 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].

11. 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.

12. 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].

13. 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].

14. In the circumstances of this case, the Tribunal considers that if a bridging visa were to be granted to the applicant, the following conditions should be imposed:

    8101:   The holder must not engage in work in Australia

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

    8505: The holder must continue to live at the address specified by the applicant before the grant of the visa

    8564:   The holder must not engage in criminal conduct

    FINDINGS AND REASONS

15. The [applicant] was born [on date].  He has not previously travelled to Australia. He is a citizen of Malaysia and arrived in Australia on 2 February 2018 as the holder of an Electronic Travel Authority (ETA) visa which had been issued to him [in] January 2018. This visa allows the holder to enter Australia multiple times over a 12 month period, so long as each stay does not exceed 3 months. The holder cannot work while on an ETA visa and cannot have any criminal convictions for which the holder has been sentenced to a total combined period of 12 months imprisonment or more.

    Chronology of events

16. On 19 April 2018 while on his ETA visa, the applicant submitted a protection visa application. According to departmental case note dated 20 April 2018, confirmation of the applicant’s residential address was required prior to this protection visa application being considered valid.

17. On 14 May 2018 a departmental case note reads that the protection visa application was determined to be invalid because no residential address had been provided with the application.

18. On 15 May 2018 a departmental case note reads that the applicant contacted the department where he was advised that the protection visa application was invalid due to him not providing a residential address and he was advised that he may need to apply for the protection visa application again.

19. On 18 May 2018, a departmental case note stated that the applicant again contacted the department and wanted to know the reason that the protection visa was invalid. The case note unhelpfully reads ‘provided email address’ and the Tribunal assumes that the applicant was told to put his request in writing, which would be consistent with the next action taken by the applicant.

20. On 18 May 2018, the applicant emailed the department and wrote that he had been informed by an immigration officer that he had been unlawful since 14 May 2018. He wrote that he applied for a protection visa on 19 April 2018, and that when he called the department on 15 May 2018 he was informed that he was unlawful because he did not add his residential address to his application. He wrote that he did not get any email from the department advising him that his application was invalid. He then provided the department with his passport number, mobile phone number, and his current residential address. He wrote that he felt very badly for living in the country unlawfully and explained that he had lodged the protection visa application before the expiration of his tourist visa and apologised for the mistake he made in not including his residential address in his protection visa application.

21. On 31 May 2018, the applicant was located by Australian Border Force officers working at [Workplace 1] in [a suburb], [State 1]. As his protection visa application was under assessment he was advised to contact the department regarding his protection visa application.

22. On 1 June 2018, a departmental case note stated that the applicant contacted the department to obtain an update regarding his protection visa application. He was advised that his application had been received and that a ‘letter would be sent to him in due course’. According to the departmental file, a generic letter was sent to the applicant acknowledging receipt of his application.

23. On 13 June 2018, the protection visa application was deemed to be invalid by the department.

24. On 25 July 2018, a departmental case note stated that the applicant rang the department regarding a bridging visa enquiry. The applicant was advised that he was currently unlawful and is required to attend on the department to resolve his status as soon as possible. The applicant said that he would do so.

25. On 9 August 2018, the applicant was again located by Australian Border Force officers working at [Workplace 1] in [suburb], [State 1]. He was detained as an unlawful non-citizen and placed into immigration detention.

26. On 23 August 2018, the applicant lodged a subsequent protection visa application which was considered valid by the department.

27. On 24 August 2018, a bridging visa application associated with the protection visa application was generated given that the applicant was in immigration detention.

28. On 28 August 2018, the delegate refused to grant the applicant the bridging because the delegate was not satisfied that the applicant would abide by conditions which would be imposed as a condition of the bridging visa.

29. The Tribunal provided the history of the applicant’s telephone contact with the department at the hearing and the applicant confirmed that this was correct. The applicant also confirmed that he had been attended upon by departmental officials on 31 May 2018 and on 9 August 2018 and that both times he had been at [Workplace 1].

    Dealings by the applicant with immigration officials – Reporting Condition and Residential Condition

30. The Tribunal accepts that the applicant lodged his first (but ultimately invalid) protection visa application during the three month period when he validly had an ETA and that he has, in some respects, been engaged with the department to address the issues arising from the invalidity of that application. The applicant told the Tribunal that the reason he did not put a residential address in his protection visa application on 20 April 2018 was due to the fact that he would be moving from that address shortly. At the time of lodging the application, he was living with friends in [City 1], [State 2] but moved to his own place at [an address] in [a suburb], [State 1] in May 2018. He told the Tribunal that although he came to Australia with [amount] Malaysian ringgits and [amount] Australian dollars he was running out of money and relocated to [State 1]. He used his remaining funds to pay a rental bond and weekly rent of $140 for his address in [a suburb], and he shortly thereafter obtained employment at [Workplace 1]. His employment will be discussed later in this decision.

31. There is nothing on the departmental file to suggest that the department was overly concerned about the applicant’s unlawful status in Australia. Quite the contrary. There are no case notes to indicate that the department initiated any contact with the applicant to resolve his invalid protection visa application, and it appears that any contact with the applicant to resolve the situation was initiated by the applicant himself. When the applicant was advised that the lack of a residential address was an issue which made the protection visa application invalid, the applicant promptly emailed the department to provide his full particulars. He then contacted the department on numerous occasions to seek an update about his protection visa application and clearly had a proactive approach to resolving the issues associated with his invalid application. The Tribunal accepts that when a valid protection visa application is lodged, an associated bridging visa is granted which allows an applicant to remain lawfully in Australia and that there was a reasonable expectation that the applicant, who has submitted a protection visa application, would expect that he would be on such a visa.

32. It appears to the Tribunal that the department has sat on its hands regarding the validity of the applicant’s first protection visa application (despite it being identified as an issue immediately, the department did not finally determine the validity until almost six weeks later). The applicant’s ETA expired on 2 May 2018 and he was unlawfully in Australia from that point onwards. He was attended upon by an immigration official on 31 May 2018 and there was no attempt by the department to regularise the applicant’s immigration status on that day in any meaningful way, other than a request by the official for the applicant to contact the department to obtain an update regarding the protection visa application, which he did the following day on 1 June 2018.

33. At first blush, the Tribunal could be satisfied that the applicant has engaged with the department, and tried to remedy the invalidity of his protection visa application as best he could. The Tribunal has given the applicant the benefit of the doubt regarding the reason for his failure to put down his residential address in his first protection visa application. His explanation is a reasonable one, especially in light of his subsequent attempts to remedy the residential address. Accordingly, the Tribunal is satisfied that the applicant would comply with condition 8505 if granted a bridging visa.

34. However, the Tribunal is concerned about the lack of meaningful attempts by the applicant to resolve his unlawful status once he was advised by the department on 25 July 2018 to attend upon the department regarding his bridging visa situation. The Tribunal notes that the applicant agreed to do so in his telephone discussion with the department, but he did not do so. The applicant explained to the Tribunal that he asked a friend what to do, and his friend advised him to go to a Post Office to obtain a ‘PSN’ but that when he went there he was advised that had nothing to do with a visa. The applicant then said to the Tribunal that he discussed the situation with his employer who told him to wait and that his employer said that he would take him to immigration ‘two or three days, or a week’ later, but that he was detained by officials on 9 August 2018 before he was able to do so. The applicant told the Tribunal that he could not go to the department on his own because he would not understand what was being said. He told the Tribunal that all previous telephone discussions with the department were completed with a friend of his translating what was being said. The applicant told the Tribunal that he was waiting to go to immigration with a friend who would help him out.

35. The Tribunal does not accept the applicant’s explanations for his failure to attend on the department to regularise his migration status. It is clear that the applicant knew about his unlawful status from at least 15 May 2018 (as noted in his email to the department) and when called upon by the department (belatedly) on 25 July 2018 to do something about it, the applicant did not do what was required of him. It is reasonable to expect that the applicant would have gone into the department to regularise his migration status forthwith. In the Tribunal’s view, the applicant’s attitude has changed from previously engaging with the department to one of non-compliance. There was ample opportunity to attend on the department between 25 July 2018 and his detention by officials on 9 August 2018 but the applicant did not do so. In the Tribunal’s view, it can have no confidence that the applicant would abide by condition 8410 if granted a bridging visa.

    Previous criminal history – Criminal Conduct Condition

36. As noted previously, to be granted an ETA the holder must not have any criminal convictions for which the holder has been sentenced to a total combined period of 12 months imprisonment or more. At the hearing, the applicant confirmed that he did not declare that he had any criminal history in his ETA application. He told the Tribunal that he had been sentenced to 4 years imprisonment at a court in [Penang], Malaysia in 2014. He was charged with possession of [a] drug which he thinks was [drug name]. He told the Tribunal that these drugs were planted in his family home by villagers because the villagers did not like him. He and his parents were all charged but the charges against his parents were dropped because the applicant pleaded guilty. He was sentenced to 4 years imprisonment but was released from prison [in] March 2015 after serving 2 years and 6 months imprisonment. He was released early for good behaviour. The applicant was asked why he did not declare his criminal history when applying for his ETA visa. He told the Tribunal that he did not declare the criminal history because he had not been charged ‘with a criminal case’. The applicant told the Tribunal that a drug case is not considered a criminal case in Malaysia. He told the Tribunal that the ETA form did not ask whether he had been to prison. When asked by the Tribunal to explain how drug cases and criminal cases are different, the applicant told the Tribunal to ask the Malaysian government why this was the case. The Tribunal pointed out to the applicant that he was applying for an Australian visa, and that the Tribunal thought that the applicant’s explanations were ridiculous.

1. In the Tribunal’s view, it would be absurd to suggest that the applicant adopted a nuanced approach to what constitutes a criminal conviction. It is well known that Malaysia has a very stern approach to drug offences, and the applicant’s later evidence to the Tribunal that he could not return to Malaysia because his prison sentence would mean he could not obtain employment, demonstrates to the Tribunal that the applicant is aware that drug offences are taken very seriously. The Tribunal does not accept the applicant’s explanations for his failure to declare his previous criminal convictions in his ETA visa application, and finds that he has been dishonest in this failure. The Tribunal is satisfied that the applicant failed to declare this criminal history because he knew that he would not be granted a visa to come to Australia if he did so. In the Tribunal’s view, this demonstrates that the applicant has a dishonest approach to Australian immigration laws, and will disregard any requirements if they do not suit his circumstances.

2. Further, the fact that the applicant has a criminal history in Malaysia is of great concern to the Tribunal. More concerning is the applicant’s explanation for that offending. The Tribunal struggles to accept that the applicant would plead guilty to offences in Malaysia for which he is not responsible, and this demonstrates to the Tribunal that the applicant has no insight into his criminal behaviour. As the applicant has no insight into his behaviour, the Tribunal is not satisfied that the applicant would remain offence free in Australia and is not satisfied that he would abide by condition 8564.

   Employment in Australia – Work Condition

3. The applicant told the Tribunal that he did not work during the three month period of his ETA visa and only commenced working in June 2018 at [Workplace 1] in [a suburb], [State 1]. He found that job after he moved to [the suburbs]. He told the Tribunal that he knew that he was not allowed to work as a condition of his ETA visa, but commenced working in Australia because he had to work to pay for his rent and his food. He said that no one in Australia could provide him with financial support and his relatives could not help him. He told the Tribunal he had to work because he was embarrassed about his financial circumstances. He admitted to the Tribunal that he had never spoken to the department to obtain permission to work in Australia. He told the Tribunal initially that he only found out that he was not permitted to work while in Australia after he had been in immigration detention, but when challenged by the Tribunal (s.424AA information) with the fact that an immigration official told him on 31 May 2018 that he had no work rights in Australia, the applicant said in response that he did not know what to say, but then confirmed that the officer had told him that he had no work rights.

4. The Tribunal was concerned that despite this interaction with an immigration official on 31 May 2018 (where the official attended on the applicant’s place of work), the applicant was again at this place of employment on 9 August 2018 when officials attended upon him and placed him into detention. The applicant told the Tribunal that his employer told the applicant that he could continue to work 1 or 2 days and the applicant needed to do so to earn money.

5. If released from immigration detention, the applicant told the Tribunal that he would no longer need to work. His cousin [Mr A] would be able to meet his living expenses. The applicant told the Tribunal that Mr [A] lives in [City 1], [State 2]and had been in Australia for more than 10 years, but that the applicant did not live with his cousin while the applicant was in [City 1]. The applicant told the Tribunal that he spoke to his cousin two weeks prior to the hearing and his cousin told the applicant that he would support the applicant ‘indefinitely’ until he obtained rights to work in Australia. When asked by the Tribunal why the applicant had not spoken to his cousin about providing him financial support previously, the applicant said that he did not want to bother his cousin and that the applicant wanted to ‘make a go of it’ on his own. The applicant was not able to tell the Tribunal his cousin’s address in [City 1], nor did the applicant present [Mr A] to give evidence to the Tribunal that he was willing to financially support the applicant and had the financial capacity to do so. The applicant told the Tribunal that he did not realise that [Mr A] would need to attend on the Tribunal to give evidence in support of his application.

6. The Tribunal has considered the evidence about the applicant’s work history and the purported financial support available to the applicant. The Tribunal does not accept that the applicant has access to financial support from [Mr A] because if such support was available to the applicant, the applicant would have accessed that support when he commenced having financial difficulties in May 2018. Instead of doing so, the applicant chose to work when he knew that he had no right to do so. The Tribunal is satisfied he did so because that is the only way the applicant could support himself in the community and that this remains the case. Accordingly, the Tribunal is not satisfied that the applicant would abide by condition 8101.

   Security – Incentive to abide by conditions

7. The applicant told the Tribunal that [Mr A] would also be able to provide a security to ensure compliance with conditions. However, the applicant told the Tribunal that the first he was aware that a security was a possibility was at the hearing and that the applicant had not discussed this with [Mr A].

8. The Tribunal is only required to consider the security question if the Tribunal funds that the applicant will comply with conditions if a security is imposed. The Tribunal is not satisfied, for the reasons above, that the applicant will abide by conditions 8101, 8401 or 8564 so it is unnecessary to consider the security question further, other than to note that the applicant gave evidence that a security would be available from a person without first checking that such a security was available and willing to be given.

   CONCLUSION

9. As noted in the decision, the Tribunal accepts that the applicant would abide by condition 8505, but is not satisfied that he would abide by conditions 8101, 8401 or 8564. In the Tribunal’s view, the applicant will do whatever he thinks is necessary to achieve what he perceives to be his best interest, whether that is failing to declare his criminal history so he can obtain entry into Australia, failing to attend on the department to regularise his migration status, or working despite having no right to do so. The applicant has a flagrant disregard for Australia’s migration laws and also has a disregard for criminal laws. In the Tribunal’s view, this disregard is serious. The Tribunal has no confidence that the applicant will abide by all proposed conditions of the bridging visa.

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

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

    Nathan Goetz
    Member