1827501 (Migration)

[2018] AATA 4309

1827501 (Migration) [2018] AATA 4309 (30 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1827501

MEMBER:Rosa Gagliardi

DATE:30 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 on 30 September 2018 at 2:52pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – multiple visa applications – unlawful status – migrant agent’s advice – awareness of visa status – fear of harm in home country – assistance from family overseas – paid nominal sum for labour – wife’s employment – living in a fixed address – financial support by wife – migrant agent’s offer of security – applicant’s sense of loyalty towards the agent – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 73
Migration Regulations 1994 (Cth), Schedule 2 cls 050.221, 050.223

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 14 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.050.223.

3. The decision to refuse to grant the visa was made on 18 September 2018 on the basis that the delegate was not satisfied that if the applicant were granted a Bridging visa E (BVE) he would abide by the associated conditions.  The applicant appeared before the Tribunal on

   
   

   27 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s current migration agent in his personal capacity, and not as the applicant’s migration agent.  The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese 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

   The grounds for seeking the visa - cl.050.212

5. 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.

6. In this case, the applicant is seeking to meet cl.050.212(3)(a).  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

7. 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.

8. ‘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.

9. On 14 September 2018, the applicant made an application for a Permanent Protection visa online and no decision by the Department has yet been made on this application.  The Tribunal is satisfied, on the evidence before it, that the applicant has made a valid application for a substantive visa that is not yet finally determined.  Accordingly, the applicant meets cl.050.212(3).

   Background

10. The applicant is a Malaysian citizen who arrived in Australia on a [visa] on 19 April 2017. 

    Whether the applicant will abide by conditions - cl.050.223

11. 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.

12. 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].

13. In light of the applicant’s immigration history the Tribunal considers that the following conditions are relevant:

    ·8101 – Must not engage in work in Australia

    ·8207 – Must note engage in any studies or training

    ·

    8401 – Must report:

    
               

    (a) at a time or times; and

    
               

    (b) at a place;

    
               

    specified by the Minister for the purpose

    ·8505 – Must reside at fixed address

14. As the applicant has not provided the Tribunal a copy of the Departmental decision for the purposes of the review, at hearing the Tribunal put to the applicant pursuant to s.359AA of the Migration Act, his migration history as follows:

    ·15/03/2017 – Granted [temporary] visa

    ·19/04/2017 – Arrive [in an Australian city] on [temporary] visa

    ·19/07/2017 – Lodged Protection visa application No.1

    ·19/07/2017 – [temporary] visa ceased

    ·20/07/2017 – Unlawful Non-citizen

    ·1/08/2017 – Protection visa application No.1 deemed invalid

    ·11/09/2017 – Lodged Protection visa application No.2

    ·14/11/2017- Protection visa application 2 deemed invalid

    ·16/11/2017 – Lodged Protection visa application No.3

    ·17/11/2017 – Granted associated Bridging visa

    ·5/12/2017 – Protection visa application 3 deemed invalid

    ·9/01/2018 Associated Bridging visa ceased

    ·10/01/2018 – Unlawful Non-citizen

    ·31/01/2018 – Lodged Protection visa application No.4

    ·19/02/2018 – Granted associated Bridging visa

    ·23/03/2018 – Protection visa application 4 deemed invalid

    ·27/04/2018 - Associated BVC ceased

    ·28/04/2018 – Unlawful Non-citizen

    ·13/09/2018 – Located by [Australian] Police and detained under s189(1)

    ·14/09/2018 – Protection visa application No.5

15. The Tribunal explained that the above information was relevant to the review because it indicated that the applicant had demonstrated that he did not maintain a lawful status in Australia at all times while he applied for Protection visas, and that once his Bridging visas ceased he was prepared to disengage from Australia’s immigration regime.

16. The Tribunal further explained that if it relied on the information it would find that the applicant would not abide by his conditions were he granted a BVE, given he chooses when, and if, he will engage with the Department of Home Affairs.  As such, the Tribunal would find that were a Bridging visa granted to him, and his Protection visa application were not successful, he would once again become an unlawful non-citizen and not abide by his conditions to report to the Department as required.

17. After a break the applicant responded that he had tried to contact his agent [Mr A] about three times, but he was always busy and there was never a suitable time they could meet. The applicant stated that he did not know that he was an unlawful non-citizen in Australia.  The Tribunal asked how the applicant could blame [Mr A] for his periods of unlawfulness.  He confirmed that he felt that he was a victim of [Mr A].  The Tribunal asked the applicant if he felt so aggrieved by [Mr A’s] actions why he had not changed migration agents, and he responded that he did not know he could do that.  The applicant stated that [Mr A] told him that his business was sold in March 2018, and he was not getting correspondence at that time as a way of explaining why he had become unlawful. 

18. At hearing [Mr A], speaking in his capacity as a witness, stated that the database systems changed and he got the applicant mixed up with other clients.  The Tribunal finds it difficult to accept that a registered migration would not have explained to his client the need for him to maintain lawfulness in Australia at all times.  Further, when the Tribunal attempted to gauge from [Mr A] the exact nature of his culpability in the applicant becoming unlawful on three occasions, the explanation that his database changed and that the applicant was mixed up with another client, is not particularly helpful in understanding what role [Mr A] had in the applicant becoming an unlawful non-citizen on three occasions.  Nor did [Mr A] ever concede at hearing that it was directly because of incorrect or bad advice given to the applicant that he personally caused the applicant to become an unlawful non-citizen who worked in breach of Australia’s immigration laws.  Indeed, the Tribunal is not satisfied that [Mr A] ever undertook such conduct.

19. In any event, for the purposes of this review the Tribunal accepts that [Mr A] takes responsibility for the applicant’s period of unlawfulness because relevant correspondence may not have been received.  The Tribunal does not accept, however, that the applicant in not being able to reach [Mr A], could not have approached the Department directly to ask about his residency status in Australia.  This is particularly so when the applicant’s [temporary] visa ceased on 19 July 2017, and it would have been entirely apparent to the applicant that his visa had expired and that he had no lawful basis for being in the country.  Instead of the applicant speaking to the Department (if he were not able to get on to [Mr A]) on 20 July 2017, the applicant became an unlawful non-citizen until he was granted a further Bridging visa on 17 November 2017, in relation to his third Protection visa application.  Even if a migration agent might involuntarily mislead an applicant, this does not excuse the applicant from confirming his status with the Department, even if for some reason his migration agent was not available at the time the applicant needed him.

20. Further, the Tribunal finds it incredulous that regardless of what the applicant might have thought about his visa status previously, given he claims he did not know he was an unlawful non-citizen, the Tribunal would have thought that on the third occasion of becoming unlawful, he would have been on notice that he needed to check his visa status and that he could not rely on [Mr A] to tell him when his visa expired.  This is particularly so, after the applicant sought his prior Bridging visa, and the Department would have warned the applicant of the importance of not breaching his conditions.

21. Given the Tribunal’s concerns about the applicant’s conduct in disengaging from the Department, the Tribunal is not satisfied that in future the applicant will not remain in the community unlawfully as he has previously done, including on the cessation of Bridging visas, or that he would deal directly with the Department and report as required by condition 8104, to ensure his status in Australia is regularised.

22. The Tribunal is particularly concerned that the applicant’s purpose in lodging his Protection visa applications has been for the purpose of maintaining residency status in Australia, rather than because he has a genuine belief that he will be persecuted on return to Malaysia. This raises questions about whether if the applicant is released from detention he might not become unlawful again because his intention is to remain in Australia to work.  The Tribunal’s concerns in this regard are reinforced because even though he had applied for a Protection visa, he was prepared to remain in the community unlawfully after his previous Bridging visas ceased previously.  Had he not been located by the [Police] on 13 September 2018, there is little to indicate that he would have attempted to regularise his status with the Department.

23. The Tribunal put to the applicant under s.359AA of the Act his response to the Australian Border Force in an interview held on 13 September 2018, in which he was asked “Are you willing to depart Australia voluntarily?” The applicant stated, “If I don’t have a visa and I am not welcome in Australia I have no choice”.  He was also asked, “Do you intend to apply for an Australian visa?” and the applicant responded that he would apply for whichever visa he met the criteria.  Asked why he wanted to stay in Australia, the applicant responded, “I like it here and I need to make a living”.  Asked why he came to Australia, he responded, “Initially I just came to have some fun.  But I liked this place so much I decided to stay and earn some money”.  He also stated that he thought he could purchase his own ticket to return to Malaysia.

24. On 18 September 2018 the applicant was interviewed by the Department in respect of this visa application and the applicant was asked what his reasons were for applying for the BVE application and the applicant responded, “I have to stay in Australia.  I cannot go back to Malaysia.  There are many creditors looking for me because of my business dealings”. 

25. The Tribunal explained that this information was relevant to the review because it appears that on the one hand the applicant stated he could return to Malaysia voluntarily and on the other that he had to stay in Australia because he was being pursued overseas.  The Tribunal explained that the applicant’s comments that he could return to Malaysia if he had to, did not support his claims to have a genuine fear of harm in Malaysia.

26. The Tribunal explained that if it relied on this information it would find that the applicant’s intention was to remain in Australia to work and that he had only lodged successive Protection visas to extend his stay in Australia to make a living, and that he was therefore highly motivated to remain in Australia to work regardless of whether he was lawful.  As such, the Tribunal would find that the applicant would breach his conditions to: report to the Department; not work; and live at a fixed address.

27. The applicant responded that he only said he had the ability to purchase a return to ticket to Malaysia, not that he would.  He stated that the reason he lodged his Protection visa is because he owed a lot of money in Malaysia.  He also stated that in fact he was also owed a lot of money because he did electrical work in Malaysia and people deferred making payments to him.  The applicant then stated that the reason he lodged a Protection visa was because he wanted to stay in Australia as he only needed a bit of time until the money owed to him was repaid, so he could then repay his creditors.  He stated that it was for a finite period only that he needed to be in Australia. 

28. The Tribunal makes it clear that it is not assessing the applicant’s Protection claims.  Nonetheless, it is entirely reasonable for the Tribunal, as it is currently constituted, to question the applicant’s motives for being in Australia as he provided them to the Department initially, and the Tribunal at hearing, in contradiction to claims he fears persecution in his home country.  The applicant’s migration history in Australia, and his contradictory and shifting statements about his purpose here, including admitting most recently at hearing that he lodged the Protection visa to buy time to wait for his creditors to pay him, raises serious concerns that the applicant is not engaged with the immigration regime in good faith, but is using the Protection visa application process to maintain ongoing residence in Australia, whether lawfully or unlawfully. 

29. The Tribunal also put to the applicant under s.359AA of the Act that in his interview with the Australian Border Force held on 13 September 2018, on being detained he was asked when he first worked in Australia, and he responded “After the [temporary] visa expired”. 

30. The Tribunal also put to the applicant his comments in his interview held shortly after on

    
    

    18 September 2018, regarding how he had supported himself while he was in the community.   The applicant stated at that time he had a sister in [one country] and a sister in [another country] and they sent him money.  He stated that if he were released from detention he could not give the Department an address at which he would reside because he was living in his car.  In terms of his support arrangements, the applicant stated that he would rely on his sisters and friends and he would have no income.  He had no savings.

31. The Tribunal explained that this information was relevant to the review because the applicant had in the past worked as an unlawful non-citizen in breach of Australia’s migration laws, even though he was to later state in his interview held on 18 September 2018, that he was being supported by siblings.  The Tribunal explained that if it relied on this information it would find that the applicant had been forced to work in breach of Australia’s immigration laws and that his financial circumstances now were so dire that he would have no choice but to breach his Bridging visa conditions in order to survive in the community.

32. The applicant responded that it was not true that he was living in his car.  What he meant was that he went to see friends and then if he did not feel like driving back home that night, he would sleep in the car. 

33. The Tribunal has little evidence before it that the applicant’s siblings have assisted him financially.  He stated that they visited him and gave him money directly in Australia.  Nonetheless, for the purposes of the review the Tribunal accepts that the applicant has had some assistance from his sisters living overseas.  It is of concern that the applicant worked even though he claims he was being supported, raising questions about the level of support by his siblings.

34. It is also troubling that at hearing the applicant revised his evidence about whether he had previously worked, providing contradictory evidence about this matter.  Initially he stated that he had not worked in Australia without lawful authority.  Later he told the Tribunal that actually he had worked for friends if they needed help with anything.  He diminished the significance of the breach by stating that he was only paid “symbolically” (nominally) and that he was paid in cash for rendering such assistance.  The Tribunal prefers the evidence that he worked in Australia as he maintained in his interview with the Department held on

    
    

    13 September 2018 on being detained and that provided to the Tribunal at hearing, over any denials he made initially at hearing that he had not worked unlawfully in Australia.  This is particularly so as the Tribunal has found that the applicant is highly motivated to work in Australia.

35. The Tribunal is concerned that the applicant’s attempts to revise his statements convey that even at hearing the applicant was prepared to obfuscate about his true financial circumstances, to persuade the Tribunal that he should be released from detention.  His denial that he had ever stated that he was living in a car is also of concern to the Tribunal in terms of the applicant’s reliability.

1. The Tribunal asked the applicant about his family in Malaysia.  He stated that he had a mother, his wife and [a] son.  The applicant stated that his wife worked in Malaysia as [an occupation].  The Tribunal asked the applicant whether he was working in Australia to support his wife and child.  The applicant said that was absolutely not true and that in fact, his wife was supporting him in Australia.  The Tribunal finds it difficult to accept, however, that his wife’s earnings as [an occupation] would be enough to support his living costs in Australia, as well as to maintain herself and her son.  The Tribunal has concerns that the applicant was not being transparent about this matter.

2. The Tribunal notes that the Department stated that it could not be satisfied that the applicant would be able to meet the condition that he would live at a fixed address (condition 8505) because he was living out of his car.  [Mr A] stated at hearing that this problem had now been overcome because he was offering his own residence for the applicant to stay at while the applicant’s Protection visa application was being assessed by the Department.  [Mr A] stated that this was the only issue the Department had expressed any concern about in its decision.  The Tribunal is reviewing the case de novo, however, and is not obliged to confine itself to the assessment of whether the applicant will abide by any one condition.  As the Tribunal stated at hearing, if the Tribunal could be satisfied that even living in a car, the applicant would report to the Department as required, and would not breach any of his visa conditions, then the condition of the applicant living at a fixed address was less important. 

3. The Tribunal accepts that the applicant’s past conduct need not necessarily point to how the applicant might conduct himself in the future and that the Tribunal should not focus only on past conduct.  Having regard to what the applicant’s current circumstances actually are,

   
   

   [Mr A] at hearing stated that he wanted to compensate for the situation the applicant finds himself in by offering the applicant a home and meals.  He also stated that he, or someone on his behalf, would supervise the applicant to make sure he reported as required, and that he would ensure that the applicant did not work in breach of his conditions.  [Mr A] stated that he was a practising solicitor and a registered migration agent and that significant weight should be placed on him not wanting to damage his reputation at all.

4. The Tribunal accepts that [A] feels the need to make amends to the applicant and that

   
   

   [Mr A] is prepared to go to extraordinary lengths to assist his client.  The Tribunal does not doubt the sincerity of [Mr A’s] offer to monitor the applicant and ensure he would not need to work in breach of his visa conditions. [Mr A] stated that he would, if necessary, try to apply for work rights for the applicant down the track.  The Tribunal is not satisfied, however, that the applicant necessarily considers that he has any obligation towards [Mr A] or that he needs to honour any commitments to towards him.  At hearing it was evident that the applicant was unhappy with [Mr A], considering he was a victim and that he only tolerated

   
   

   [Mr A’s] continued assistance because he did not know where else to go.  The Tribunal is therefore not satisfied it can rely on any sense of loyalty or obligation by the applicant to

   
   

   [Mr A], regardless of any amount of security posted by [Mr A].

5. 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.

6. The Tribunal has taken into serious account that [Mr A] has agreed to pay upwards of AUD$40,000 as security to enable the applicant to be released from detention.  Indeed, he seems to be prepared to post any figure to assist the applicant.  Given the Tribunal has serious reservations about the applicant’s sense of responsibility towards [Mr A] or that it is mutual, the Tribunal is not satisfied that any amount of security will motivate the applicant to abide by the conditions on his visa and not abscond into the community again.

7. 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.

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

9. 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

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

    Rosa Gagliardi
    Member