1832034 (Migration)

[2018] AATA 5159

1832034 (Migration) [2018] AATA 5159 (12 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1832034

MEMBER:Nora Lamont

DATE:12 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 12 November 2018 at 11:20am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – disregard for the integrity of the migration program, public safety and the law – valid application for a substantive visa – abiding by visa conditions – past immigration history – disputed custody of a child – criminal convictions – domestic violence – inter-caste marriage – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 73, 269, 359AA, 501K
Migration Regulations 1994, Schedule 2, cl 050.212, 050.221, 050.223, 051.211, Schedule 8 Division 050.6

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) 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 26 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 31 October 2018 on the basis that the applicant’s history demonstrates a clear disregard for the integrity of the migration program, public safety and the law. The applicant appeared before the Tribunal on 9 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi 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. 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 the criterion at the time of decision: cl.050.221.

6. In this case, the applicant is seeking to meet cl.050.212(3). 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 3 August 2018 the applicant lodged a Permanent Protection (XA-866) visa which is under consideration by the Department. Accordingly, the applicant meets cl.050.212(3).

   Whether the applicant will abide by conditions - cl.050.223

10. 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.

11. 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].

12. Due to the applicant’s immigration history the Department indicated it would impose the same conditions the Tribunal considers are relevant:

    ·Condition 8101 – Must not engage in work in Australia

    ·Condition 8207 – Must not engage in any studies or training

    ·

    Condition 8401 – Must report:

    
      

    (a) at a time or times; and

    
      

    (b) at a place;

    
      

    specified by the Minister for the purpose

    ·Condition 8506 – must notify immigration at least 2 working days in advance of any change in the holders address

    ·Condition 8564 – Must not engage in criminal conduct.

13. The Tribunal started the hearing discussing the applicant’s immigration history and put it to the applicant under s.359AA of the Migration Act as follows:

    ·[June] 2009 – First arrived in Australia on a [student] visa

    ·11/11/2011 – Lodged [a further student] visa with associated Bridging visa

    ·9/12/2011 – [Student] visa granted

    ·25/05/2012 – Lodged [Skilled] visa

    ·21/6/2012 – Associated Bridging visas granted

    ·30/11/2012 – Refused [Skilled] visa

    ·3/12/2012 – Commenced review of [Skilled] visa refusal

    ·5/06/2013 - Lodged [Temporary Work] [ visa offshore

    ·7/06/2013 – Associated Bridging visa for [Temporary Work] visa invalid – applicant offshore on the date of lodgement of the application

    ·[June] 2013 – Last arrived on a Bridging visa B

    ·6/09/2013 – Review of [Skilled] visa refusal affirmed

    ·12/09/2013 – Refused [Temporary Work] visa

    ·30/09/2013 – Commenced review of [Temporary Work] visa refusal

    ·15/10/2013 – Associated Bridging visas ceased

    ·16/10/2013 – Became an unlawful non-citizen

    ·15/10/2014 – Review of [Temporary Work] visa refusal affirmed

    ·3/08/2018 – Lodged Permanent Protection (XA-866) visa

    ·7/09/2018 – Located and detained by [Compliance] at [a] Corrections Centre and transferred to [named] Immigration Detention Centre

    ·8/09/2018 – Lodged Bridging Visa E (BVE) subject of this review.

14. The Tribunal put to the applicant that the information about his immigration history was relevant because it showed the applicant had disregard for the Department and for his own visa status since he had been unlawful for five years. The Tribunal invited the applicant to respond. The applicant stated that he went to a dodgy migration agent and they took his money and disappeared. The migration agent did a fraud on him and took $2000 from him then sent his application to the MRT (AAT). The applicant then said he went to another agent and applied for a [Temporary Work visa] but hat agent just closed their office down and he was not able to find them.

15. In terms of the applicant having been unlawful for five years the applicant said it was his wife who handled all the visa matters and that she had told him he was on her visa, when in fact she had been lying to him. He assumed that his visa status was tied to her visa. In addition the applicant said he was working during this unlawful period because he assumed he was on his wife’s visa and that she had told him he was and that he was free to work fulltime. When asked why he didn’t seek clarification himself from immigration about his visa status the applicant said he was in love with his wife so he never asked.

16. The Tribunal is aware that in making an assessment about whether it can be satisfied about the applicant’s future conduct in respect of adhering to his Bridging visa conditions, it should take into account the applicant’s past immigration history, but not exclusively.  The Tribunal is required to have regard to the applicant’s current circumstances and any factors that may be conducive to the applicant complying with their conditions.

17. The Tribunal finds it difficult to accept that the applicant remained unlawful for five years whilst claiming his wife told him he could work fulltime. The Tribunal notes that the applicant had engaged with the immigration system for multiple years, paid agents to put in applications and had a series of visa applications yet then for five years he claimed he thought he was on his wife’s visa. The Tribunal has no evidence before it that the applicant would have sought out immigration or immigration advice to regulate his status in Australia and had he not been located the Tribunal believes he would have continued to live in the community unlawfully in breach of Australian immigration laws.

18. Further, the applicant could have departed Australia at the time his bridging visa cease yet he remained in Australia unlawfully. The Tribunal places significant weight on this period of unlawfulness and his disregard of Australian migration laws. The Tribunal is not satisfied that the applicant would abide by the conditions of his visa due to his disregard for Australian migration law.

19. The Tribunal asked the applicant about his claims for protection and his protection visa application. The applicant explained that he didn’t need a visa for a long period just enough time to go to the courts and get custody of his son so he could take his son back to India with him. He said I am not going to stay here my whole life. Further, the applicant said that his father in law is threatening the family in India and his mother in law who is currently in Australia on a visitor’s visa is making problems for him. The Tribunal finds this to be concerning as the applicant is stating he wants to use a protection visa to enable him to stay in Australia to get custody of his son and then he will return to India. The applicant did not elaborate on the threats his father in law was making and the Tribunal was left to assume that these statements about his future intentions are more to do with getting back at his wife and getting custody of his child than claims for protection or seeking protection from Australia due to a family feud in India.

20. The Tribunal asked the applicant what he would do for money should he be granted the visa. The applicant said that his father would help him with money as his father has the means to help him as he owns four shops in India. He pointed out that he had support from people in the community and the Tribunal was provided with letters from people in the community who said they would assist the applicant with a place to stay and food. The Tribunal received copies of letters from [Mr A], [Mr B], [Mr C], [two further named persons] and [Mr D] who all stated they would assist him should he be released and that he was a good person with family values. The Tribunal has placed weight on statements by the applicant’s friends in Australia who genuinely appear motivated to assist the applicant with food, shelter and other necessities for a significant period.  The Tribunal has sighted several statements in this regard:

    ·

    Statutory Declaration from [Mr B] who works in “[an occupation]” dated

    
    

    9 September 2018, stating that the applicant was a very good friend he/she had met 4-5 years ago in a gym and they went to the same Gurudwara Sahib (Temple) to pray.  The writer states, “As far as I know he is very good person, religious, helping behaviour and very good father.  During my divorce time he is the one of good friend (sic) support me emotionally and was with me to talk.  I got shocked when I heard he is in immigration detention centre.  I myself will be (sic) support him financially upon his release from detention centre.  I am more than happy to provide accommodation (in my own house), food, clothing etc to support him.

    ·Statutory Declaration from [Mr D], dated 12 September 2018, in the main declaring, “I know him from approximately four years, over the past few years he has been visiting me and assisting me with different things when I need help. He is very helpful and supportive attitude.  After his hearing and before going to detention centre he was staying at my residence. I owned my own house and I am more than happy to provide accommodation in my own home to support his for (sic) as long as he wants’

    ·Letter from [Mr C] to the Magistrate dated 26/07/2018 “On 16 July the applicant explained to me what happened in the incident and ([the applicant]) explained their was domestic violence and he was immediately remorseful to his wife and son”.

21. The Tribunal acknowledges the applicant’s friends and supporters who would assist him should he be granted a visa. However, the Tribunal has serious concerns about the applicant having significant debt and no work rights and whether the applicant could abide by condition 8101 No Work.

22. The applicant claimed that he never worked for cash while he was unlawful, that he paid his taxes. However, this contradicts his location interview with immigration when the applicant stated he was working for cash in hand and was taking home $1000 AUD per week.

23. The applicant claimed he was paying all his wife’s school bills and owes $30,000 on his credit card. He said he borrowed $10,000 from [Mr A] and paid it back as his father gave him the money. A letter was given to the Tribunal from [Mr A] that stated the applicant borrowed $10,000 from him but paid him back. He also stated he would loan the applicant more money if he needed it. When asked how he would support himself in the community he said his father would help and he had the support of his friends.

24. The Tribunal is not satisfied the applicant would not seek to work should he be in the community. His significant period of being unlawful, claiming he did not work for cash to the Tribunal yet telling the Department he did work for cash and the significant amount of debt the applicant has causes concerns for the Tribunal and the Tribunal is not satisfied the applicant would abide by condition 8101 No Work condition on his visa.

25. The Tribunal put to the applicant under 359AA his criminal convictions and the serious nature of these convictions. The applicant said that his wife started the fight and that she kicked him so he punched her. He also pushed his mother in law against a wall. He said he didn’t know what happened in this country but in India if someone kicks you have the right to fight back.

26. The Tribunal also put to the applicant under s.359AA the information provided to the Department in respect of his criminal history in Australia as follows:

    ·Intervention order against him by the police (subject to reconsideration of terms to enable him to see his child)

    ·Intervention order against him by his wife valid until [December] 2019

    ·Convicted of 2 x counts Threats to kill

    ·Convicted of 3 x counts Unlawful assault

    ·Convicted of 2 x counts Recklessly cause injury

    ·Convicted of 1 x count Assault with weapon.

27. The applicant said his wife wanted to drop the IVO but it was too late. He then said he wanted to get an IVO against his wife and that he called the police and they told him to get an IVO against her. He also said that his mother in law has never been happy with their marriage and that they are from different castes. He also said that since his mother in law was here she had caused a lot of problems. He then said his wife would always go a little bit far for him, she would take their son out and then she would come home really late.

28. The applicant stated he that he voluntarily undertook an Anger Management Course and he has submitted to the Tribunal evidence that this is the case.  The Tribunal accepts that he undertook this course but considers that the seriousness of his actions outweigh any reassurances that the applicant has within the space of a few months undergone a transformation in terms of being able to manage his anger. Further the applicant was blaming his wife for his assault on her, and claiming he had the right to fight back is of grave concern to the Tribunal.

29. The applicant provided the Tribunal with a statement from his wife dated 21/08/2018 that said she did not want police to take any more action against her husband for her own reasons as they have a son together but she also said she has an Interim Family Violence Order against her husband and still wants that to continue to protect herself and her son. The Tribunal puts little weight to this as she does state that she wishes to continue to protect herself and her son with the IVO.

30. The Tribunal notes that the applicant blamed his wife for his visa status or lack thereof, for the assault and his convictions and during the hearing he kept calling her a liar. He provided the Tribunal with documents that are messages from his wife about her saying she was single, and that she was trying to get permanent residence in Australia. He also provided the Tribunal with documents related to his paying for her schooling, and rent on their house. The Tribunal was provided with a copy of a final court order for custody of the applicant’s son to which the applicant’s wife was given sole custody and in the court order the applicant’s wife states that they broke up in 2014, and that the applicant was unreachable. When asked to explain as he told the Tribunal he was with his wife living with her the whole time he was unlawful, the applicant said that she was lying and he had been living there with her the whole time. He also said she lied about being single and provided his marriage certificate and wedding photos to prove they were married. Further, he said that she has visited him two times in the detention centre and brought their son to see him. He also said that she rings him in detention on his phone and she thinks he is having an affair with a white woman.

31. The applicant provided a statement to the Tribunal in which he again blames his wife for holding up his visa documents, she did not put him on her visa and went behind his back to get full custody of his son. The applicant states that he has never missed a court date or corrections appointment and attended four sessions of men’s behaviour change program. The applicant outlines reasons to give him a visa including going to court to get his son back and he needs to physically be able to get documents he cannot whilst in immigration detention and he would like to get some legal aid. Finally he states he needs documents for his protection visa application and he cannot access them from immigration detention. The Tribunal gives some weight to his statement that he does want to get on with his life outside of detention but the Tribunal’s concerns are too great about the applicant’s ability to abide by his visa conditions.

32. The applicant spent most of the hearing blaming his wife for his visa status, his criminal convictions and for his deep debt. The blame and anger towards his wife and mother in law is concerning to the Tribunal and the Tribunal is not satisfied that the applicant would abide by condition 8564 should he be granted a visa.  The applicant’s attitude towards migration and criminal law and his inability to accept responsibility for his actions are most concerning to the Tribunal.

1. The Tribunal concerns are too great to render any amount of security adequate as the Tribunal is not satisfied the applicant will abide by his visa conditions.

   Conclusion

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

3. 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

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

   Nora Lamont
   Member