1826744 (Migration)

[2018] AATA 4328

1826744 (Migration) [2018] AATA 4328 (21 September 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1826744

MEMBER:Jason Pennell

DATE OF DECISION:  21 September 2018

DATE CORRIGENDUM

SIGNED:23 October 2018

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The date ‘3 June 2015’ at paragraph 8 should be replaced with ‘3 June 2018’.

Jason Pennell
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1826744

MEMBER:Jason Pennell

DATE:21 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made 21 September 2018 at 12.15pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) – Subclass 050 (Bridging (General) – no work condition – applicant working unlawfully until being involuntarily located – community and family support – no evidence of level of support – criminal charges in Australia – unable to provide security – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 73, 189, 269
Migration Regulations 1994 (Cth), r 2.20 Schedule 2 cls 050.211, 050.212, 050.221, 050.222, 050.223, 050.613A

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.The applicant applied for the visa on 5 September 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.050.212 and cl 050.223.

3.The decision to refuse to grant the visa was made on 5 June 2015 on the basis that the applicant did not meet cl.050.223 as the delegate was not satisfied the applicant would abide by conditions imposed on any bridging visa granted to him. The applicant appeared before the Tribunal on 20 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

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

CONSIDERATION OF Claims and evidence

5.The issue in this case is whether the applicant will abide by the conditions imposed on the bridging visa as required by cl.050.223.

Immigration status of the applicant - cl.050.211

6.Clause 050.211 is met if, at the time of application:

(1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

(2)the applicant was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17). 

7.The applicant must continue to satisfy this criterion at the time of decision: cl.050.221. 

8.It is not in dispute that the applicant was an unlawful non-citizen at the time of application. The applicant first entered Australia on 31 January 2018 as a tourist visa [subclass deleted]which was valid until 30 April 2018. After the applicant tourist visa ceased on 30 April 2018 he remained in Australia and became an unlawful non-citizen (UNC). He did no contact the Department in order to regularise his immigration status nor did he depart or make adequate arrangements to depart Australia. The applicant acknowledged at hearing that he had remained unlawfully in Australia following the cessation of his visa before he was detained on 2 May 2018 pursuant to s.189 of the Migration Act. The Tribunal finds that the applicant was an unlawful non-citizen at the time he made the application for the bridging visa on 3 June 2015. Accordingly, the applicant meets cl.050.211(1).

9.It is not claimed and the evidence does not otherwise suggest that the applicant was an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17) and accordingly the applicant meets cl.050.211(2).

10.Therefore, the applicant meets cl.050.211

The grounds for seeking the visa - cl.050.212

11.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.

12.In this case, the applicant is seeking to meet cl.050.212(3) on the basis that he has made a valid application for a substantive visa which has not been finally determined.  The applicant does not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the applicant meets cl.050.212.

Substantive visa application

13.Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

14.‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act.

15.[The applicant] claims and departmental records confirm that he made an application for a Protection (Class XA) visa on 5 September 2018 and that application has not yet been finally determined.  The Tribunal finds that and accordingly the applicant meets cl.050.212(3).

Whether the applicant continues to satisfy the time of application criteria - cl.050.221

16.Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision.  Departmental records indicate that as at the date of the Tribunal’s decision [the applicant] remains an unlawful non-citizen and his protection visa application has not been determined by a departmental delegate.  The Tribunal finds that at the time of decision, the applicant continues to satisfy cl.050.211 and 050.212 and therefore meets cl.050.221.

The requirement to be interviewed by an authorised officer - cl.050.222

17.Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause. The exceptions are either: the applicant is not in immigration detention, holds a Bridging E visa, has made a valid application for a substantive visa, and will not be seeking a further Bridging visa E visa with different conditions; or, the applicant is not in immigration detention, does not hold (but previously held) a Bridging E visa, has made a valid application for a substantive visa and the authorised interview officer was not available at specific times; or the applicant meets cl.050.212(4AAA) or continues to meet cl.050.212(4AB).

18.Departmental records indicate and [the applicant] does not dispute that he was interviewed by a departmental officer on 31 August 2018.  Accordingly, the applicant meets cl.050.222.

Whether the applicant will abide by conditions - cl.050.223

19.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.

20.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.[1]

[1] Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16]

21.In this case, cl.050.613A applies because the applicant has applied for a protection visa and is not in a class of persons specified by the Minister by instrument in writing for that paragraph. Clause 050.613A provides that condition 8101 is mandatory in such circumstances and that certain other conditions may be imposed. At hearing the Tribunal advised the applicant that it considered the following conditions should be imposed on her visa in the circumstances of this case:

·Condition 8101, requiring the applicant not to work

·Condition 8401, requiring the applicant to report at a time and place specified by the Minister;

·Condition 8506, requiring the applicant to notify of any change of address at least 2 days in advance;

·Condition 8564, requiring that he not engage in any criminal conduct.

Condition 8101, requiring the applicant not to work

22.In the current circumstances condition 8101 would be a mandatory condition imposed on any bridging visa granted to the applicant.  The applicant confirmed that upon his arrival in Australia he went to live with his uncle in [Town 1] [State 1]. At the hearing the applicant confirmed the evidence he provided during his Compliance Client Interview (CCI) conducted on 2 May 2018 that he had been earning approximately $200.00 per week as a [occupation].  The applicant confirmed that he had no savings.

23.The applicant’s evidence was that his family in Fiji and his uncle in [Town 1] had offered to support him. In addition the applicant said that his aunty, [Ms A]from [an Australian city in State 1] had offered to accommodate and support him. The applicant produced a letter dated 14 September 2018 from [Ms A] which confirmed her offer to accommodate and support the applicant. The applicant provided a photo of the letter to the Tribunal. While the applicant did not provide any evidence that the letter was in fact by [Ms A] the Tribunal is prepared to accept the applicants evidence that it was from his aunty, [Ms A]. 

24.Nevertheless,  despite the applicant’s evidence, and in particular the letter form [Ms A] the applicant did not provide the Tribunal with any evidence as to the type and level of support his family members were willing and able to provide. While [Ms A] stated that she was prepared to accommodate and support the applicant there was no evidence as to the level of support she was able and prepared to provide. The Tribunal notes that despite having received accommodation and support for his uncle in [Town 1], the applicant still worked in breach of his visa conditions. 

25.Therefore, the Tribunal is not satisfied that the applicant would comply with condition 8101 despite his claim of having community and family support. Even taking in account his aunts offer of accommodation and support, there was no evidence as to the level of support she was able and willing to provide. The applicant conceded that in the event that [Ms A] or his family did not provide additional money to support him he would have to work. As a result, taking into account of the fact that he worked unlawfully while living with his uncle in [Town 1], the Tribunal is not satisfied that the applicant would not work as he cannot maintain an acceptable standard of living without any source of income or savings. As such the Tribunal does not accept the applicant’s evidence that he would not engage in work in Australia.

Condition 8401, requiring the applicant to report at a time and place specified by the Minister

26.The applicant is not satisfied that the applicant would abide by the condition 8401 to report at a time and place as specified. The applicant remained in Australia unlawfully until being involuntarily located. The applicant claims that he remained unlawfully in Australia die to the fact that he was not aware of his rights and obligations. While the Tribunal accepts that the applicant was not aware of what he needed to do to ensure that he stayed in Australia lawfully, the applicant was not able to provide any evidence of any enquires or advise he had sought in an effort to remain in Australia lawfully. As such, the Tribunal has concerns that the applicant is likely to repeat his behaviour of remaining in Australia unlawfully in the event that he does not receive a favourable outcome from his protection visa application. Therefore, the Tribunal finds that had the applicant not been located by the [State 1] police and detained by the Department he would have remained in the community rather than rectifying his immigration status or lodging an application for a protection visa. Accordingly, the Tribunal finds that the applicant would not abide with conditions 8401.     

Condition 8564, requiring that he not engage in any criminal conduct

27.The Tribunal has concerns about the applicant’s ability to abide by condition 8564, not to engage in criminal conduct, given that he has criminal charges in Australia. His criminal matter before the courts relating to violence, whilst placed in the community. The applicant was arrested by [State 1] police for having breached conditions of Apprehended Violence Order relating to a [age] year old [child]. During the course of the hearing the applicant said that the applicants mum did not like him and that she had arranged the AVO to be taken out against him. He said that the matter had been ‘sorted out’ and that the charges had been dropped. However, the applicant did not able to provide any documentary evidence in support of his evidence. 

Security

28.The Tribunal has also considered whether the imposition of any security would act as incentive to secure the applicants compliance with the conditions. 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

29.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.[2] 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.[3]

[2] VAAN at [10]

[3] VAAN per Finklestein J at [21]-[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37]

30.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.[4] In this case the applicant’s financial position is such that he is not able to provide a security. His evidence was that he has no income or savings. The applicant stated that his family both in Australia and in Fiji were willing to provide security for him. However, he was not able to provide any evidence as to their willingness or their ability to pay security on his behalf.

[4] VAAN at [27]

31.The applicant’s previous involvement in criminal conduct and his strong desire to remain in Australia without making any provision for his immigration status reflect adversely on his reliability to abide by the visa conditions and future compliance. The applicant has shown little regard for Australia’s migration laws in the past. As such, the Tribunal finds that no amount of security will act as an incentive for the applicant to abide by the conditions of his bridging visa.

32.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.

Conclusion

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

34.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

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

   Jason Pennell
   Member