1833343 (Migration)

[2018] AATA 5339

1833343 (Migration) [2018] AATA 5339 (21 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1833343

MEMBER:Roslyn Smidt

DATE:21 November 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 21 November 2018 at 5:25pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – pending judicial review proceedings – abide by conditions imposed on bridging visa – previous breaches of immigration law – remained in Australia illegally after unsuccessful protection visa application – worked without permission – access to financial support – unable to subsist without working – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 269
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 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) 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 25 August 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 applicant appeared before the Tribunal on 19 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

5. The applicant arrived in Australia on a Student Guardian Visa [in] September 2007. Conditions placed on this visa included 8101 (no work) and 8503 (no further stay). On 21 December 2008 she lodged an application for a protection visa and was granted an associated Bridging Visa C (BVC). Conditions placed on this visa included 8101 (no work) and 8503 (no further stay) were also placed on this visa. The PV application was refused on 21 December 2008 and this decision was affirmed by the Refugee Review Tribunal on 30 April 2009. On 8 June 2009 the applicant’s BVC ceased and she became an unlawful non-citizen.

6. The applicant remained in Australia following this time. On 26 October 2018 she was identified as an unlawful non-citizen by police following a dispute at the home she had been sharing with her recently deceased husband.

7. On 26 October 2018 the applicant was interviewed by a compliance officer from Australian Border Force. According to the record of that interview she said that she had been in a relationship with a man called [Mr B] who had died earlier in the day, but members of his family had denied her entry to the home they had shared. She said that she and [Mr B] were married and he had promised to help her to obtain a visa.  She said that she had worked [in Occupation 1] for $100 a day until about three years ago when she ceased working.  She could not recall any further details of her employment.  She also said that her son had been supporting her and would continue to look after her.   When asked she said that she did not want to leave Australia and indicated that she was unwilling to do so.

8. On 8 November 2018 the applicant lodged an application for judicial review of the RRT decision made on 30 April 2009. On 12 November 2018 she lodged an application for a BVE. She stated that she wished to be released to attend her husband’s service. She provided a statement from [Mr C] which states that he knew the applicant’s late husband and had met her a few times. [Mr C] said that he was willing to provide accommodation and financial support to the applicant if she was released from detention and was willing to provide a security bond if required. He also provided copy of a payslip which indicates that he had earned $994 in the week ending 4 November 2018, but also appeared to indicate that this was the only payment he had received from that employer this financial year.

9. On 13 November 2018 she was interviewed a delegate of the Minister for Home Affairs in relation to her BVE application. According to the delegate’s decision she claimed that she had been unaware that she was an unlawful non-citizen. She said that she had worked casually and her late husband had supported her. She said that she wanted to be released from detention to look after her grandchildren and to sort out a dispute with other members of her late husband’s family. She also said that she was unwilling to leave Australia because she wished to remain with her son who was currently awaiting the outcome of a protection visa application. When asked about [Mr C] she said that had only met him once when they had coffee before he husband died.

10. The decision to refuse to grant the visa and the decision relating to requiring a security was made on 13 November 2018 on the basis that the delegate was not satisfied that the applicant would abide by the conditions which he would impose on a bridging visa granted to the applicant, namely condition 8101 (no work), 8401 (report as directed), 8506 (notify change of address) and 8564 (must not engage in criminal behaviour).

11. On 15 November 2018 the applicant provided a copy of a notice of filing and hearing form the Federal Circuit Court which states that an application for review of a migration decision was received on 9 November 2018 and a hearing had been scheduled for 22 November 2018. She also provided s copy of a marriage certificate which states that she married [Mr B] on 2 June 2013 and copies of letters dated 25 October 2013 and 23 November 2013 which state that she had been living with [Mr B] for two years at that time.

12. The applicant attended a hearing of the Tribunal on 19 November 2018. She confirmed that she had divorced her first husband and married [Mr B]. She said that he was a pensioner and they lived together in housing provided by the government.

13. I noted that the last visa she had held ceased after her PV application refused 30 April 2009 and asked why she had not departed at that time. She said that she after she met her husband she lodged a partner visa based on their relationship. I observed that there did not appear to be any record of this application. She said that an agent had been looking after her application, but she could not remember when she last had any contact with this agent. I observed that it appeared that she had remained in Australia unlawfully. I also noted that it appeared that she had worked despite not have permission to do so and that she did not appear to have had any contact with the Department regarding her circumstances. She said that she had not really worked, she had just helped some people [perform specified tasks] and they only paid her $100 a day. She said that she had stopped working three years ago because she lost contact with the man who had employed her.

14. I asked that applicant where she would go and how she would support herself if she was released from detention. She said that she did not know and she had not made any arrangements, and then added that her son would have to provide for her. I noted that she had not provided any evidence of her son’s willingness or ability to provide support. She said that even if he did not agree she would stay with him because she was his mother and she had nowhere else to go.

15. When asked, the applicant confirmed that she had arrived in Australia with her son who held a student visa. She said that he had studied for a short time, but then stopped. He now works [in specified occupation], but it is not stable work.  She said that he had married an Australian girl and they have [children]. They live in rented accommodation in [Suburb 1]. She said that her son works somewhere else, but comes to [Suburb 1] regularly. She said that her son had been included in her protection visa application, but also stated that he had lodged a protection visa application which had not yet been decided.

16. At the applicant’s request I telephoned the applicant’s son. He said that he would be willing to provide accommodation and financial support for his mother. He said that he was currently in Australia on a Bridging Visa awaiting the outcome of a protection visa application. When asked for his address he said that it was in [Suburb 1], but he could not recall the address. He offered to send a copy of an identity document which contained this information. He said that he lived in [Suburb 1] and was there all the time. He said that he worked casually [doing specified work] and earned about $1000 a week. When asked if he could provide payslips or invoices as evidence of his income, he said that he did not have any documents relating to his pay. I asked if he had a bank account. He said that he had a bank account but there was very little money in it because he had recently drawn out most of his funds, but said he could deposit his cash in the account if necessary.

17. I advised the applicant that if she wished to provide any further evidence regarding her son’s willingness or ability to provide her with support if she was released from detention she should forward by close of business the following day.

18. I noted that the applicant had previously stated that [Mr C] would provide her with support if she was released from detention, but she said nothing about him when I asked her about any support she might have if she was released from detention. She said that she had asked [Mr C] for held and he had agreed to help her. She confirmed that she had only met him once.

19. I reminded that applicant of the conditions which the delegate considered should be placed on a bridging visa if one was granted to her and that the delegate had refused her application because he was not satisfied that she would comply with those conditions. I advised her that I considered that the same conditions should be imposed if she was issued a Bridging Visa E. The applicant said that she would comply with these conditions. I asked if there was anything she would like to add. She said that she had nothing more to say.

    The grounds for seeking the visa - cl.050.212

20. 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.

21. In this case, the applicant is seeking to meet cl.050.212 (3A). Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.

22. The applicant has provided evidence which confirms that on 9 November 2018 she lodged an application for judicial review in relation to the refusal of her protection visa application on 29 April 2009. Therefore she meets cl.050.212.

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

23. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision. The applicant’s applicant for judicial review is scheduled for hearing on 22 November 2011.

24. Tribunal finds that at the time of decision, the applicant continues to satisfy cl.050.211 and 050.212.

    Whether the applicant will abide by conditions - cl.050.223

25. 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.

26. 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].

27. I consider] that the following conditions should be imposed in the circumstances of this case:

    ·     8101 – no work

    ·     8401 – report as directed

    ·     8506 - notify change of address

    ·     8564 (must not engage in criminal behaviour)

28. After considering all of the relevant evidence, I am not satisfied that the applicant would comply with these conditions if she was granted a bridging visa.

29. In the first place, the applicant failed to depart Australia after her protection visa application was unsuccessful in 2009 and made no attempt to contact the Department to regularise her status during nine years she remained in Australia illegally. In addition, she has worked despite not having permission to do so. I find these actions a strong indication that the applicant has little regard for her obligations under Australia law. In reaching this conclusion I have noted her submission that she believed that an agent had lodged a partner visa application on her behalf based on her marriage to her late husband and did not know that she was in Australia unlawfully. However, there is no record of any such application and I found the applicant’s evidence regarding the lodgement of the application unconvincing.  I am not satisfied that she was unaware that she was in Australia unlawfully or that she sought to regularise her status at any time.

30. Secondly, from the evidence provided to the delegate and at the hearing it is clear that the applicant is determined to remain in Australia. In these circumstances and in light of her record set out above, I am not satisfied that she would comply with the requirements that she report to the Department as required and notify them if she changes her address.

31. Thirdly, the applicant has not financial resources and I am not satisfied on the evidence before me that she would have access to financial support or secure accommodation if she was released from detention such that she could support herself without working. While her son gave oral assurances that he would support her, no documentary evidence has been provided regarding the accommodation or financial support he could provide. It appears that his resources are limited at best. With regard to [Mr C], it appears that he has only met the applicant once. Furthermore, the only evidence provided regarding his financial circumstances is a pay slip which appears to suggest that he had earned less than a $1000 from the employer in question from the beginning of the financial year until November 2018.

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.

    CONCLUSIONS

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.