1837021 (Migration)

[2018] AATA 5541

1837021 (Migration) [2018] AATA 5541 (21 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1837021

MEMBER:Joseph Lindsay

DATE:21 December 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 21 December 2018 at 4:20pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – applicant’s past immigration history – working without permission – engaging in criminal conduct – provision of a bond – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.221, 050.223, 050.613, 051.211; Schedule 8, Division 050.6, Conditions 8101, 8564; r 2.20

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 12 December 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 December 2018 on the basis that the delegate was not satisfied that the applicant will comply with the conditions imposed on his visa.

4. The Tribunal also received oral evidence from the applicant’s fiancé, [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by his registered migration agent, [Representative A].

6. The Tribunal notes that while [Representative A] made an objection about the interpreter’s abilities, the applicant made indications to the Tribunal that he could understand the interpreter.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Time of application criteria

9. The Tribunal has considered the delegate’s decision in regard to the time of application criteria. The Tribunal put to the applicant that, based on the information before it, the Tribunal was satisfied that the applicant satisfied the time of application criteria.

10. The Tribunal finds that the applicant satisfies the time of application criteria, including:

    a.subclause 050.211(1), where at the time of application the applicant is an unlawful citizen.

    b.subclause 050.211(2), where at the time of application the applicant is not an eligible non-citizen of the kind set out in regulation 2.20(7), (8), (9), (10), (11) or (17).

    c.subclause 050.212(2), where at the time of application the applicant is making, or was the subject of, acceptable arrangements to depart Australia. The applicant provided a copy of a travel itinerary showing that he and his fiancé have a fully paid airline ticket with [an airline] travelling from Melbourne to Ho Chi Minh City on [a date in] January 2019.

    d.subclause 050.212(3) in Schedule 2, where at the time of application the applicant has an ongoing Permanent Protection Visa (XA 866) application before the Department that has yet to be finally determined.

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

    Time of decision criteria - whether the applicant will abide by conditions

12. Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a Bridging Visa E 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.

13. 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].

14. 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 8564 (the holder must not engage in criminal conduct).

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

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

16. 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:

    [The applicant] stated during the Bridging E visa interview he has about $5000 with his girlfriend which he will rely on if granted a visa and released from detention. I find this information inconsistent with his claim of having $200 during the LPI and place no weight on his claims of new funds. I find [the applicant] has provided this information to take attention from his past actions and history of non-compliance with visa conditions. During the LPI conducted on 28/11/2018 and 16/08/2018, and an interview with Status Resolution on 04/12/2018, [the applicant] stated he worked as [an occupation] although he knew he had no lawful right to engage in any form of employment due to 8101 no work condition placed on his Bridging C visa granted in association to his protection visa application. [The applicant’s] stated non-compliance with the no work provision raises further concerns that [the applicant] will be unable to support himself in the community without again returning to work. [The applicant’s] statements that he repeatedly and over a long term breached the no work condition raises legitimate concerns regarding [the applicant’s] risk to the Migration program and I place great weight in this history when compared with [the applicant’s] statements that he will abide by conditions if granted a further visa.

17. In response to the Tribunal’s invitation to comment, the applicant indicated that he will not work because he intended to fly back to Vietnam, and that the only thing he wanted to do was to be able to get out of detention and go shopping with his fiancé for their wedding back in Vietnam. [Ms A] also indicated to the Tribunal that all she wanted was for her fiancé to be let out of detention so he could go shopping with her before their return to Vietnam for their wedding. [Ms A] indicated to the Tribunal that, because she herself was on a student visa, she was hopeful that the applicant would be able to return to Australia with her while she studied in Australia although she had not yet got advice from the Department as to whether or not she could do this.

18. When the Tribunal asked the applicant how he would support himself in Australia if he were to be granted a Bridging Visa E, he indicated that his family back in Vietnam would send him money. When the Tribunal asked the applicant if he had any documentary evidence supporting his submission that he would have access to enough money to support himself while he was still in Australia, he indicated he had no such documentation. The Tribunal notes that neither [Representative A] nor [Ms A] was able to provide such documentation to the Tribunal.

19. [Ms A] indicated to the Tribunal that when the applicant got arrested by [Police] on drug charges, he transferred $5000 to her and that the applicant would be able to use this money to support himself. [Ms A] indicated that she could log into her online banking on her mobile phone to show the Tribunal evidence that he transferred $5000 to her. The Tribunal notes that [Ms A] was not able to provide any such evidence to the Tribunal.

20. In consideration of the above, the Tribunal places low weight on the applicant’s assurances that he has sufficient financial support in order to support himself in Australia without him having to work.

21. In regard to the evidence from [Ms A], the Tribunal places low weight on [Ms A’s] assurances that she had sufficient funds to support the applicant. The Tribunal places low weight on [Ms A’s] wishes to go shopping with her fiancé before their wedding.

22. 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 Bridging Visa E.

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

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

24. 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:

    On [a date in] 2018, [the applicant] was arrested and remanded in criminal custody for ‘cultivate commercial quantity of cannabis’, ‘possess cannabis’, and ‘criminal damage’. [The applicant] appeared at [Court 1] and was convicted and sentenced to [term] imprisonment. Drug offences are taken seriously by the Australian community and this is reflected by [the applicant’s] conviction and sentence. [The applicant’s] involvement in a criminal enterprise undermines law enforcement authority and I am not satisfied he will abide by condition 8564 – must not engage in criminal behaviour. 

25. The applicant made admissions to the Tribunal that he grew cannabis. The applicant made admissions to the Tribunal that he pleaded guilty to two of the drug charges. The applicant made admissions to the Tribunal that as a result of his drug convictions he spent [term] in [Prison 1]. 

26. In consideration of the above, the Tribunal places high weight on the information from the delegate’s decision and the applicant themselves. The Tribunal places high weight on the applicant’s admissions that he grew cannabis, pleaded guilty to two of the drug charges, and that as a result of his drug convictions he spent [term] in [Prison 1]. 

27. 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 Bridging Visa E.

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

    Security Bond

29. In her written submissions to the Tribunal dated 20 December 2018, [Representative A] indicated that the applicant’s parents would be prepared to pay a $50,000 security bond to ensure that the applicant would comply with his visa conditions. [Representative A] provided a written ‘statement of support’ from the applicant’s parents and a copy of a ‘[Bank 1]’ Term Savings Book in the applicant’s mother’s name. 

30. In the hearing [Representative A] indicated that the applicant’s parents would pay the funds to [Ms A], and that [Ms A] would be able to provide the money for the security bond.

31. The Tribunal put to [Representative A] that given the applicant’s admitted criminal history, drug convictions that are not minor convictions, and the Tribunal’s concerns about the applicant’s ability to abide by condition 8101, no amount of security will act as an incentive for the applicant to abide by the conditions of the Bridging Visa E.

32. In response, [Representative A] indicated that the applicant has paid his time in prison, he has made a mistake and that the Tribunal would be further punishing the applicant if the Tribunal did not grant the applicant a Bridging Visa E.

33. The Tribunal put to [Representative A] that the Tribunal was not a criminal jurisdiction and that the effect of the decision of the Tribunal in relation to the applicant’s application for review was not a ‘punishment’ in any way equivalent to that in the criminal justice system.

34. [Representative A] argued that the applicant’s criminal behaviour would not mean that he would not comply with his visa conditions. [Representative A] argued that the Department would not allow the applicant to return to Vietnam in the near future even if he said he wanted to return to Vietnam, and the Department would keep the applicant in detention until they returned the applicant to Vietnam. 

35. The Tribunal spoke with the applicant about the $50,000 security bond, but he did not know much about it because his family communicated with [Ms A]. The applicant indicated that he spoke to his parents and he knew they were prepared to pay the $50,000 security bond. The applicant indicated that he spoke to his parents and has told them he applied for protection.

36. When the Tribunal asked the applicant why he had applied for protection if he wanted to go back to Vietnam he indicated that he wanted to be released and to buy things for the wedding and visit his friends and invite them to his wedding in Vietnam and to have a little farewell party.

37. When the Tribunal asked the applicant whether he had just indicated that he had applied for protection for the purposes of his wedding arrangements, he said ‘yes.’

38. In consideration of the above, the applicant's previous involvement in criminal conduct and his previous breach of the 8101 no work condition reflect adversely on his willingness to abide by the visa conditions and future compliance. The applicant has shown little regard for Australia's migration laws in the past. As such, the Tribunal finds that no amount of security will act as an incentive for the applicant to abide by the conditions of his bridging visa.

    Conclusion

39. 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.

40. The Tribunal notes that the applicant has also indicated he would be prepared to provide a security bond of up to $50,000. 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 Bridging Visa E if it were to be granted.

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

42. 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

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

    Joseph Lindsay
    Member