1831304 (Migration)

[2018] AATA 5537

1831304 (Migration) [2018] AATA 5537 (2 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1831304

MEMBER:Shane Lucas

DATE:2 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 02 November 2018 at 2:18pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – prospect of complying with visa conditions imposed – past breaches of immigration law – knowingly remained unlawfully in Australia for over 30 months – worked illegally for the vast majority of that time – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.223, 050.613A

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 23 October 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 24 October 2018 on the basis that the applicant would not abide by conditions imposed on the visa. The applicant provided a copy of the delegate’s decision when he applied for review.

4. The applicant appeared before the Tribunal on 1 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

5. The applicant was not represented by a registered migration agent.

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

   RELEVANT MATTERS

   The grounds for seeking the visa

7. 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.

8. In the present case, the applicant is seeking to meet cl.050.212(3). The applicant does not claim to meet any of the alternative criteria in cl.050.212.

9. Clause 050.212(3) requires inter alia that 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. ‘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.

10. At hearing, the applicant stated that he had applied for a Protection Visa (Class XA) (Subclass 866) and that this application had not been finally determined. Accordingly, the Tribunal finds that the applicant meets cl.050.212(3).

    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.

13. 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].

14. 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 the Tribunal is not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl.050.223 is not met.

15. In this case, cl.050.613A applies because the applicant has made a valid application for a protection visa which has not been finally determined. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    8207     The holder must not engage in any studies or training in Australia.

    8401     The holder must report:   (a) at a time or times; and (b) at a place; specified by the Minister for the purpose.

    8506     The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.

    8564     The holder must not engage in criminal conduct.

16. The Tribunal also explained to the applicant that condition [8101: The holder must not engage in work in Australia] is a mandatory condition placed on the visa.

17. The applicant indicated that he understood the conditions as the Tribunal outlined them. The applicant stated that he would abide by these conditions.

18. The Tribunal raised a number of concerns with the applicant concerning his claim that he would abide by the conditions imposed, as set out below:

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The applicant arrived in Australia [in] December 2015 as the holder of a [temporary visa]. The applicant stated that he lived initially at a property in [Suburb 1], [State 1] (for some three weeks) and subsequently with his sister at a property in [Suburb 2] (for more than two years). The applicant stated that he recently moved to another property in [Suburb 2], subsequent to an argument with his sister, where he lived with cousins. The applicant stated that he moved to this property [in] October 2018 and that it was at this residence that he came to the attention of [State 1] Police, and was subsequently detained at [the] Police Station [in] October 2018. After several hours in police custody, the applicant stated that he was removed to [a detention facility] by officers of the Department of Immigration.

20. The applicant stated that his sister took his passport from him in his first weeks in Australia in early 2016 and would not return it. The applicant stated that his sister was worried that he would return to Malaysia. The applicant stated that he understood that his substantive visa expired [in] March 2016, but that he took no steps to make himself known to the Department of Immigration or to regularise his immigration status. The applicant stated that he asked his sister to return his passport to him, but she refused. The applicant explained that his sister is some [number] years older than him and that he did not want to upset her. The applicant stated that his sister told him there is nothing for him in Malaysia, as their parents are deceased. The applicant stated that while he did not initially intend to overstay his visa in Australia, he remained because his sister had taken his passport and he did not want to hurt her feelings. In response to questions from the Tribunal, the applicant also stated that it was too expensive to get a lawyer and try to resolve his immigration status, and so he did nothing.

21. The applicant stated that he did not commence working in Australia until approximately June 2016. Prior to that time, the applicant stated that he was supported by his sister and just “played computer games”. At some time in or around June 2016, the applicant stated that he travelled to Queensland on the advice of a friend and commenced [specified] work. The applicant claimed that he was “cheated” by his employers in Queensland and so returned to [State 1] in approximately August 2016. On returning to [State 1], the applicant began working [in] [Suburb 3]. From time to time, the applicant has also worked [at] a property in [Suburb 4]. The applicant indicated that he had been aware that he was not allowed to work by the condition of his initial [temporary] visa or while remaining unlawfully in Australia since the expiry of that visa [in] March 2016. The applicant stated that he had done so anyway in order to have some money. The applicant noted that his sister has been unable to work since having a caesarean section operation at the time of her youngest child’s birth in [year], and that they “took it in turns” to provide for each other financially.

22. The Tribunal finds that the applicant demonstrated a disregard for abiding by immigration requirements and law regarding his status in Australia and his employment. The Tribunal notes that the applicant remained unlawfully in the community for over thirty months until he was located and detained [in] October 2018. The Tribunal explained to the applicant that this lengthy period of unlawful status – and unlawful employment – raised serious concerns that he would abide by the conditions that might be imposed on the visa.

23. The applicant reiterated that he would abide by the conditions imposed and that he would return to his sister’s home. The applicant stated that his sister would be able to support him financially as she sub-lets several rooms at [Suburb 2] property and lives off that income. The applicant also stated that he has approximately AUD1000 in a bank account and another AUD700 in cash at [the detention facility]. The applicant stated that he did not need much money to live.

24. The Tribunal noted its concerns that despite being unlawful for a considerable period of time, the applicant had not done anything to make arrangements to leave Australia or to regularise his visa status until being detained. The applicant said he wanted to get out of detention and that he would abide by any conditions placed on the visa. The Tribunal noted that this was the issue under consideration and that the Tribunal needed to be satisfied that the applicant would comply with any conditions imposed on the visa under review.

25. The applicant reiterated that he would return to his sister’s property in [Suburb 2] and reside with her and her young child. The applicant said that he and his sister had put their disagreement behind them, and that brothers and sisters always fight, but continue to support and care for each other. The Tribunal asked the applicant about his relationship with his sister’s child. The applicant stated that his niece is the child of [a certain national], but that his sister does not live with the child’s father. The applicant did not know the child’s birth-date, but indicated to the Tribunal visually that she was very young. In response to further questions concerning his sister’s domestic arrangements, the applicant stated that she has two other children residing in Malaysia, but that he does not know any details about her personal life and does not ask. The applicant said he minded his own business.

26. The Tribunal asked the applicant why he did not now wish to return to Malaysia and why he had lodged a Protection Visa application. The applicant stated that his brother would compel him to work with him selling drugs. The applicant stated that he has acted as a courier for his brother on several occasions, but could not identify the nature of the drugs being sold. The applicant said he had not been paid by his brother on these occasions, but had taken “packages” to people on his motorbike when he was “already going in that direction to play [computer] games”. The applicant said if he was compelled to sell or deliver drugs for his brother, it would be very dangerous and he might get in trouble with the police. The Tribunal asked the applicant why he did not refuse to participate in his brother’s business. The applicant said that his brother would just keep asking him and would be “pushy”. The Tribunal asked the applicant if he had ever been involved in illegal drug activity in Australia: he said he had not. The Tribunal asked if his brother was part of the reason he had initially come to Australia: the applicant said he came to Australia to “clear his mind and have a peaceful time” and because his sister would look after him.

27. On consideration of the evidence, the Tribunal finds that the applicant knowingly remained unlawfully in Australia for over 30 months post the expiry of his substantive visa in March 2016. The Tribunal finds that the applicant worked illegally for the vast majority of that time, knowing that he was doing so, until being detained in October 2018. The Tribunal finds that the applicant took no action to regularise his immigration status in this time and only applied for a protection visa subsequent to being detained. The Tribunal has considered the applicant’s rationale for this behaviour – that his sister had taken possession of his passport and that it would be too expensive to hire a lawyer and resolve his status – and finds that rationale to lack credibility. The applicant is a [age] year old man and could have prevailed upon his sister to return his passport and to assist (and not hinder) his efforts to regularise his status in Australia. Even without his passport, the applicant could have approached the Department of Immigration prior to the expiry of his substantive visa and explained his situation and circumstances, including any genuine or perceived fear of a return to Malaysia. The applicant also stated that he paid $900 to another Malaysian-Australian woman to assist him to lodge a protection visa application from detention. Hence, the Tribunal does not accept the applicant’s contention that cost was a contributing factor of any significance in his failure to take steps to resolve his immigration status in Australia.

28. The Tribunal notes that the applicant has stated that he would abide by conditions imposed on the visa under review. However, the Tribunal considers the previous breaches of immigration law made knowingly by the applicant to be significant and serious, and that the applicant’s explanations and reasons for his past conduct do not justify those same actions. The applicant worked whilst an unlawful non-citizen, an offence under s.235 of the Act carrying significant penalties. He became unlawful and remained unlawful for over 30 months until he was located by [State 1] Police and detained by the Department. The responsibility for abiding by visa conditions and remaining lawful in Australia rests with the individual. Further, the Tribunal does not accept that the applicant has demonstrated remorse or contrition for these actions. The Tribunal finds these breaches of immigration law, without adequate explanation, to be material to the consideration of whether the applicant will abide by conditions imposed. 

29. The Tribunal also has concerns that the applicant has not been entirely forthright or candid about his reasons for initially travelling to Australia; his reasons for overstaying his substantive visa; his places of work and residence; and his reasons for not wanting to return to Malaysia. The Tribunal finds that the applicant has misrepresented the times and places and settings of his illegal employment; that he demonstrates limited knowledge of his sister’s domestic arrangements, notwithstanding his claim that they are close siblings, that he lived with her consistently over the past two-and-a-half years, and that she would look after him if he was able to return to her home in [Suburb 2]; and that the applicant’s account of his previous involvement with his brother’s illegal activities in Malaysia (and hence his fear of a return to his country of origin) strains credulity. These factors lead the Tribunal to have further concerns about whether the applicant would abide by conditions imposed on the visa.

30. The Tribunal has considered the evidence the applicant has provided indicating that his sister would support him. However, given the above findings, the Tribunal does not accept that the applicant would not work illegally and be supported entirely by his sister. The Tribunal finds, given these concerns, that if the applicant were released, there is a very strong chance he would once again work unlawfully.

31. Further, the Tribunal finds that the applicant has breached immigration requirements and remained unlawfully in the community, indicating a disregard for immigration laws. Even taking into account his explanations, the Tribunal has no confidence that he would now comply with the conditions imposed on the visa. Specifically, the Tribunal finds that there is a very strong chance that the applicant would seek to again remain in Australia unlawfully, and hence would not report regularly to the Department as directed or inform the Department of any change of address within at least two working days.

32. On the evidence before it, the Tribunal is therefore 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

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

    Shane Lucas
    Member