1833637 (Migration)

[2018] AATA 5222

1833637 (Migration) [2018] AATA 5222 (26 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1833637

MEMBER:Joseph Lindsay

DATE:26 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 26 November 2018 at 3:33pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – time of decision criteria – abiding by visa conditions – must not engage in work in Australia – financial support – must not engage in criminal conduct – cannabis cultivation – denied being interviewed by police – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223; Schedule 8, Conditions 8101, 8564

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 (‘BE’) under s.73 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 12 November 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 14 November 2018 on the basis that the applicant would not comply with the conditions that would be imposed on the visa, including mandatory condition 8101, and discretionary condition 8564. The applicant appeared before the Tribunal on 21 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence over the phone from a person named [Mr A], a friend of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

4. The Tribunal notes that the interpreter and the applicant’s representative informed the Tribunal that they both know each other and have a professional relationship. The applicant’s representative indicated that she also does interpreting work in addition to her role as a migration agent and that she and the interpreter know each other through their interpreting work. Both the interpreter and the applicant’s representative indicated they considered they had no conflict of interest in undertaking their respective roles during the hearing. The Tribunal accepts that the applicant’s representative and the interpreter openly and transparently declared their professional relationship at the commencement of the hearing. The applicant also indicated that he was comfortable with the knowledge that the applicant’s representative and the interpreter knew each other. Accordingly, the Tribunal finds that neither the applicant’s representative nor the interpreter has any apparent conflict of interest in respect to their roles in this matter.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal notes that when asked if he knew why the delegate had refused to grant him a BE he indicated that he did not know why he had been refused a BE. At one point in the discussion, he indicated that the decision had been read to him, but at another point he indicated the decision had not been read to him. He indicated he asked the delegate to explain the decision and the delegate did not tell him why. The Tribunal formed the view that the applicant did not appear to understand the delegate’s decision as to why the applicant had been refused a BE. In further discussion, the applicant indicated he had no understanding of the criteria he needed to be able to satisfy to be granted a BE. The Tribunal asked the applicant if he could explain why he thought he satisfied the criteria to be granted a BE, to which he indicated he did not understand.

7. The Tribunal asked him why he thought he should get a BE. In response, the applicant indicated that he never received notification about the outcome of his application for protection and he did not know why he had to be detained. The Tribunal put to the applicant that he appeared to have very little or no understanding as to why he was refused a BE, and that he had little or no idea of what he needed to do to satisfy the Tribunal that he should be granted a BE. In response, the applicant agreed that was an accurate assessment.

8. The Tribunal put to the applicant that the Tribunal had to be satisfied of two things – time of application criteria and time of decision criteria.

9. The Tribunal has considered the delegate’s decision in regard to the time of application criteria and notes that the delegate was satisfied that the applicant complied with the time of application criteria. The Tribunal put to the applicant that the Tribunal was satisfied that the applicant satisfied the time of application criteria. The Tribunal finds that the applicant satisfies the time of application criteria, including cls.050.211(1), 050.211(2), and 050.212(3) as he has applied for judicial review of the decision to refuse him a protection visa.

10. The issue in this case is whether or not the applicant satisfies the time of decision criteria.

    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 BE 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 this case, the mandatory conditions that will be imposed on the visa if granted are 8101 (the holder must not engage in work in Australia). The discretionary conditions that will be imposed on the visa if granted are 8207 (the holder must not engage in any studies or training in Australia), 8401 (the holder must report at a time or times and at a place specified by the Minister for the purpose), 8506 (the holder must notify Immigration at least two working days in advance of any change in the holder's address), 8564 (the holder must not engage in criminal conduct) and 8566 (must not breach the code of behaviour).

14. Based on the evidence before the Tribunal, the Tribunal is not satisfied that the applicant will comply with conditions 8101 or 8564.

    Certificate issued under s.375A of the Act

15. In the hearing, the Tribunal put to the applicant that there was a certificate issued under s.375A of the Act on his file.  The Tribunal put to the applicant that the certificate covers information concerning possible breaches of the criminal law, including that disclosure of the information to the applicant would not be in the public interest because the documents relate to a pending investigation of a possible breach of the law or enforcement of the law. The Tribunal explained to the applicant that s.375A prevented the disclosure of that information to him. The Tribunal invited the applicant to comment in regard to the validity of the certificate.

16. In response, the applicant indicated he thought the Tribunal had asked him about the conditions to grant him a BE.

17. The Tribunal further explained to the applicant that information had been given to the Tribunal about the applicant, and that information comes from Victoria Police about the applicant. He indicated he understood what the Tribunal had told him. The applicant indicated he was surprised that the Tribunal had information about him from Victoria Police because he did not know what it was about. The Tribunal explained that the Tribunal cannot give the information from Victoria Police to the applicant. The Tribunal again asked the applicant whether there was anything the applicant wanted to say in relation to whether the certificate was valid or not.

18. In response, he indicated that he overheard that it was said that police arrested and interviewed [him] but he said that was not true.

19. The Tribunal asked the applicant’s representative about whether she had any comment in regard to the validity of the certificate, and she indicated she had no comment to make.

20. The Tribunal finds that the certificate issued under s.375A of the Act dated 16 November 2018 is valid.

    Mandatory condition 8101 – The holder must not engage in work in Australia

21. The Tribunal discussed with the applicant why he thought he would comply with mandatory condition 8101 and not work. The Tribunal put to the applicant the information from the delegate’s decision that:

    During the Bridging Visa E (BE) interview on 13/11/18 you stated that you had not been working due to an injury and operation in 2016. You then stated that friends had been helping you with food and shelter since that time. You also stated that you had had access to Centrelink benefits and reiterated that you have never worked and claimed you had only volunteered at a temple. 

    I am not satisfied that since you arrived in Australia as an IMA in 2013 you have never worked, but rather only volunteered at a temple or been supported by friends. You stated that you usually stay home and do not go out.

22. In response to the Tribunal’s invitation to comment, the applicant indicated that he consulted with the GP and his health is not good, so he decided to stay home and not work. The applicant indicated that he asked the community to help him get a suitable job but there is no such thing. When asked what he meant by ‘no such thing’, he indicated that he had not got a suitable job. When asked what he meant by ‘suitable job’ he indicated he had skills as a barber but he had not found a suitable job. He indicated he could do construction work but the doctor would not allow him to do that work. When asked what his injury was in 2016, he indicated he had a lump in his tummy. When asked if he had a hernia, he indicated he did have a hernia that was 10cm wide, and even though he had an operation the lump could come back. The Tribunal reminded the applicant that he could not work on the BE, and that the issue was what money he would have to support himself in the future if he did not work. He responded that he had a number of friends who said that they would assist him with food and accommodation. He indicated a lady, who was his friend, would help him. Her name is [Ms B]. He indicated that, since he [practises specified religion], he volunteered at a [temple] with [Ms B].

23. The Tribunal notes the statutory declaration from [Ms B] dated 10 November 2018. The Tribunal attempted to contact [Ms B] by telephone but there was no answer.

24. The Tribunal asked the applicant if he knew what [Ms B] had written in her statutory declaration about him. He indicated that he had no idea at all what the statutory declaration said, and that no one had explained the document to him. The applicant indicated that [Ms B] said she would provide him with food and accommodation. When asked how he knew that, he indicated that he spoke to [Ms B] over the phone and that he had known her for ‘quite a while’ since the Chinese New Year.

25. The Tribunal noted that the applicant previously indicated that he knew other people who were out in the community on BEs. The Tribunal asked if he wanted the Tribunal to contact anyone else. The applicant indicated that another person also named ‘[Mr C]’, may assist him. The Tribunal attempted to contact ‘[Mr C]’ by telephone but there was no answer.

26. The applicant indicated that a person named ‘[Mr A]’, who came to Australia on the same boat as the applicant, may assist him.

27. The Tribunal telephoned [Mr A] and was able to get through to him. [Mr A] advised the Tribunal that he could support the applicant with his expenses and accommodate him. When asked how he knew the applicant, he indicated he travelled on the same boat as the applicant. [Mr A] confirmed he was working [in Industry 1.] When asked who he worked for, [Mr A] indicated that he could not pronounce the name of the workplace in English. [Mr A] then indicated he would provide the name and the address of where he worked but he could not remember the name and the address of where he worked. The phone call ended.

28. The Tribunal put to the applicant its concern that [Mr A] could not remember the name and the address of where he worked. The applicant’s representative then asserted that the interpreter had misinterpreted, and that [Mr A] could provide the details of his employer. The Tribunal informed the applicant’s representative that [Mr A] had until 12:30pm to provide the details of his employer and evidence of [Mr A]’s employment. The Tribunal notes that after the hearing, the applicant’s representative provided the work details for [Mr A] being [Mr A], [Business 1], [specified address].

29. The Tribunal notes that at the hearing, the applicant’s representative asserted that if the applicant were to receive a BE he would apply to Centrelink to receive benefits while he was waiting for the outcome of his appeal of the decision to refuse him a protection visa.

30. The Tribunal also notes the written submissions from the applicant’s representative where she indicated that the applicant will live with [Ms B].

31. In consideration of the above, the Tribunal places low weight on the applicant’s assurances that he has sufficient financial support from others in order to support himself in Australia without him having to work. Even though a statutory declaration was provided from [Ms B], the Tribunal was not able to contact her to test her evidence that she would be able to support the applicant. Accordingly, the Tribunal places low weight on the statutory declaration from [Ms B] indicating that the applicant would live with [Ms B] and be supported by her if he was granted a BE.

32. In regard to the evidence from [Mr A], the Tribunal places low weight on [Mr A]’s assurances he would support the applicant. [Mr A] only provided information to the Tribunal about his claim as to where he works. [Mr A] provided no evidence of his employment or any information about his financial capacity to support the applicant. Accordingly, the Tribunal places low weight on [Mr A]’s assurances that he would support the applicant if he was granted a BE.

33. In regard to the applicant’s assurances that he would receive Centrelink benefits if he were to be given a BE, the applicant has not provided any written information to the Tribunal to confirm that he was on Centrelink benefits or that he would be on Centrelink benefits if he were to be given a BE. Accordingly, the Tribunal places low weight on the applicant’s assurances that he would receive Centrelink benefits if he was granted a BE.

34. Given the above considerations, the Tribunal is not satisfied that the applicant would be able to financially support himself and not work if he were to be granted a BVE.

35. For these reasons, the Tribunal is not satisfied that the applicant will abide by mandatory condition 8101 if he were to be granted a BVE.

    Discretionary Condition 8564 – the holder must not engage in criminal conduct

36. The Tribunal discussed with the applicant why he thought he would comply with discretionary condition 8564 and not engage in criminal conduct. The Tribunal put to the applicant what the delegate had said in respect to this issue, being:

    I asked you about the circumstances of the police stopping you for a random check while you were driving. I note that when you were located involuntarily that a number of items usually used in cannabis cultivation were located in the car with you. The items found in your car included large amounts of electrical cords/tape and ventilation equipment usually used for cultivation. You acknowledged during your interview with me that when the police opened the car they found items in the car, however you claimed that the items did not belong to you.  I asked what items were found and you claimed that you could not recall the items. You stated that you were unaware of the items as you previously lent your car to your friends. I asked if the items in the car involved drugs and you stated that you have never taken drugs or made drugs. During your LPI you acknowledge that the police have a suspicion regarding ‘something’ but that you were told by your lawyer to ‘stay silent’ if you didn’t know anything. I asked if you have been in trouble with law and you stated no.

    Contrary to what you have claimed, I note that the department holds information which indicates that you have previously been arrested and interviewed in [2017] in relation to the cultivation of narcotic plants. I also note that while you have not been formally charged at this point in time, you have come to the attention of police on numerous occasions in the past relating to cannabis cultivation.

    Given the previous incidents where you have come to the attention of police for cannabis cultivation, and the fact that you have recently been found once again with items relating to cannabis cultivation in your car, I give your claim that you have never been involved in drugs little weight.

    Based on the above, despite the fact that you have not been formally charged, I am not satisfied that if the visa is granted you will comply with condition 8564 given the significant information  which indicates you have been engaging in criminal conduct.  

37. When asked if he wished to provide comment, the applicant indicated that he was never involved in criminal activity and he was not happy he was not granted a BE. He further indicated he was never arrested or interviewed by police, prior to the occasion when he was intercepted when he was driving the car and put in detention. He denied the police interviewed him in [2017].

38. The Tribunal put to the applicant that the Tribunal had the information in the decision record before it, as well as the information covered by the s.375A certificate.

39. The Tribunal put to the applicant that in accordance with s.359AA of the Act the Tribunal may consider the information covered by the s.375A certificate. The Tribunal put to the applicant that the information covered by the s.375A certificate suggests he has a tendency to engage in criminal conduct and, subject to his comment, the Tribunal may find that the applicant may not comply with condition 8564 of the BE. In response the applicant indicated that he did not want additional time or an adjournment and he responded immediately to the Tribunal. He indicated that he was never involved in criminal activity and that he was not arrested in [2017], and he indicated that he did not know what information the Department had. The applicant asserted that the Tribunal was only listening to one side, but the Tribunal put to the applicant that the hearing was being held to also have the applicant tell his side of the story. The Tribunal put to the applicant that he had indicated that he had never had any interaction with Victoria Police prior to going into detention and that he had never committed any criminal activity. In response, the applicant indicated he did not wish to say anything else. The applicant indicated that he came to Australia to look for freedom and that he never received any letter in relation to that. The Tribunal reminded the applicant that the hearing was not a hearing to consider his protection claims. This seemed to surprise the applicant. The Tribunal again indicated to the applicant that the hearing was only about his BE. The applicant indicated that he did not know his BE was expired when the police picked him up.

1. In consideration of the above, the Tribunal places high weight on the information from the delegate’s decision that the applicant has been involved in illegal activities – namely cannabis cultivation. The Tribunal places high weight on the information from Victoria Police that is covered by the s.375A certificate that the applicant is subject to a pending investigation for possible breaches of the criminal law. In respect to the applicant’s submissions, the Tribunal places some weight on the applicant’s indications that he has never been charged with an offence before and that he has never been arrested or interviewed in relation to any illegal activities – including cannabis cultivation.

2. In balancing the above considerations, the Tribunal is not satisfied that the applicant is likely to abide by condition 8564 if he were to be granted a BVE.

3. For these reasons, the Tribunal is not satisfied that the applicant will abide by discretionary condition 8564 if he were to be granted a BVE.

   Conclusion

4. 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.

5. The Tribunal notes that the applicant has also indicated he would be prepared to provide a security bond of up to $20,000. Given that the Tribunal made the finding that it is not satisfied that the applicant will abide by conditions imposed on the visa if granted, the Tribunal finds that no security, no matter the amount, could satisfy the Tribunal that the applicant would abide by the conditions of a BE if it were to be granted.

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

7. 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

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

   Joseph Lindsay
   Member