1837318 (Migration)

[2019] AATA 855

1837318 (Migration) [2019] AATA 855 (2 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1837318

MEMBER:Sean Baker

DATE:2 January 2019

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 January 2019 at 5:07pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – long periods of unlawful residence – working without permission – separation from family – provision of a bond – advice of previous agent – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 73, 359AA, 501K
Migration Regulations 1994, Schedule 2, cl 050.212, 050.221, 050.223, 050.613, 051.211, Schedule 8 Division 050.6

CASES

Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
Krummrey v MIMIA (2005) 147 FCR 557

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 13 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 18 December 2018 on the basis that the applicant would not abide by conditions imposed on the visa: A copy of that decision was provided by the applicant to the Tribunal. The applicant appeared before the Tribunal on 2 January 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent and the Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin 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. The issue in this case is whether the applicant will abide by conditions imposed on the visa.

   The grounds for seeking the visa - cl.050.212

6. 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.

7. 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.The applicant indicated at hearing that he had applied for a substantive visa. The decision record indicates that the applicant has made an application for a protection visa which has not been finally determined. Accordingly, the applicant meets cl.050.212(3).

   Whether the applicant will abide by conditions - cl.050.223

8. 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.

9. 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].

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

11. In this case, cl.050.613A applies because the applicant applied for a protection visa 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:

12. 8401    The holder must report:

13. (a)       at a time or times; and

14. (b)       at a place;

15. specified by the Minister for the purpose.

16. 8505    The holder must continue to live at the address specified by the applicant before the grant of the visa.

17. 8506    The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.

18. 8564    No criminal conduct.

19. I noted to the applicant that Condition 8101 – no work is a mandatory condition that would be imposed. The applicant responded that he understood the conditions as explained and that he would abide by them.

20. I discussed with the applicant his previous immigration history. He said he had arrived in Australia in September 2006 on a student visa. I asked when this visa ceased and he said he did not know. He said he had studied for half a year and them something had happened at school and he stopped studying. I asked if he had spoken with the Department of Immigration about his visa at this time and he said he had not. The applicant was unable to tell me when his student visa ceased but agreed it may have been in 2008. I asked if he had got another visa and he said he had not because his immigration agent at the time did not inform him of anything. I asked what he had thought or done about his immigration status at that time. He said that because they did not inform him he was not aware of his condition and did not think about it that much. I noted that he had come to Australia on a student visa, for the purpose of study, and had ceased studying after six months, so what had he thought about his immigration status. He said that at the beginning of 2007 he met his wife and he was about to apply for a visa to join her student visa, he could not remember when this was he said. He said he had told his immigration agent to apply for him and he thought they had but then the Department came to his house and he realised the agent had not done anything. he said he could not remember when he had applied but he though 2014 or 2015.

21. I asked why the Department had come to his house and he said that his visa expired, that is why they had come to him. he said they came between 2014 and 2015. He said they came to inform him that they had emailed him and asked why he had not informed them when his visa expired. He said he held a BV and this ceased in 2016 and then he applied for a protection visa in May 2016. He said as part of this application he was granted a bridging visa. He said he was initially allowed to work and then the Department called him in and told him he was not allowed to work. He said this happened in roughly 2017. He said he had stopped work. When I pointed out that he had had his previous bridging visa cancelled in December 2018 for working he said he had been working at that time. He said he had stopped work at the end of 2017 but at the beginning of 2018 he re-started work because of living pressures.

22. He said that he had worked as [an occupation] for 10 years. He agreed that his last bridging visa had been cancelled because he had been working. I asked if he had had a right to work for those 10 years he said he had worked and he said he had, prior to 2016.

23. I put to the applicant under s.359AA information from the Department movement records. I explained to him that Departmental movement records indicate that he arrived in Australia in September 2006, and that his student visa ceased on 15 March 2008. He remained in the community unlawfully for over 3 years until 7 December 2011 when he was granted a bridging visa. He again became unlawful for a year and a half from 28 August 2013 until 2 March 2015. From 2011 he held a series of bridging visas, many with the no work condition, and he had his last bridging visa cancelled on 12 December 2018 on the basis that he had breached the no work condition on that visa by working. The applicant indicated he understood the information. I explained that this information was relevant because it appears to indicate he had spent long periods unlawful in the community, and had had his last bridging visa cancelled for breach of a condition placed on that visa. I explained that this may indicate a disregard for immigration laws, and that he would continue this behaviour and not comply with conditions, neither the mandatory no work condition, or the other conditions that would be imposed on the visa including the reporting requirement or living at a specified address. I explained that the consequence of this being relied on is that, subject to any comment or response he made, this information would be the reason, or a part of the reason for affirming the decision that is under review. The applicant indicated that he understood why this information is relevant to his decision and the consequences. I explained that he could respond now or later and that he had a right to ask for more time. I then gave the applicant a break to confer with his representative.

24. After the break the applicant said that he wished to respond right away. He said that right now the main thing for him as to be with his family. He had been in detention for three weeks and it had been very painful for him. He said he still had some savings, he would not go to work, he would report every day. He said that for him family reunion was the most important. He said he had his wife and [children].

25. I explained that I was very sympathetic to his situation but that I had concerns that he had flouted immigration laws in the past and I had real concerns with whether he would comply in the future. He said that in the past when the Immigration Department informed him not to work he stopped working, but life without work was hard and the burden on his wife would be hard. I asked why that would not be the situation now and he said now he had a substantial amount of savings in his account that would sustain him for quite a while. He said he held [an amount] in savings. He said he could give the Department a bond and report every day.

26. I asked what amount he would be willing to provide as a bond and he said he could give $40 – 50,000 as a bond. I explained that I had two concerns with this, the first was that it appeared from the Department decision that he had provided a bond of $20,000 previously but that it had not appeared to alter his behaviour as he had continued working, for which his visa had been cancelled last month. He indicated it would alter his behaviour. I noted also that if he was to pay such a large amount, I would have concerns about how he could support himself and his family without working. He said that with the amount he would have left in savings he could still sustain his family for a while and his wife could go out and work and he could look after the kids. I asked if his wife had a job and he said she did not have one yet.

27. The applicant’s representative made a short submission in which he pointed out that the family had not been separated previously. He said that the applicant desired to provide for his family so they could have a better life, but the applicant would not work so he would not have to be further separated from his family. The applicant had told the agent he wanted to prove he would not work by reporting to the Department every day so he has no real possibility to work. The representative pointed out that the applicant would abide by the other conditions because he had a family so he was unlikely to disappear compared to others. He said the family suffered emotional distress and wanted him back. The representative said that the risk of the applicant re-offending was not as high as many other applicants who have illegally stayed and breached visa conditions in the past. He said that the applicant had not hid from the Department, he had been living at the same place all the time.

28. I have carefully considered the evidence of the applicant, and the submission of his representative. I appreciate that the applicant has a young family and wishes to be with them, and I have given this considerable thought. However, I continue to hold concerns that the applicant will abide by the identified conditions.

29. There is some doubt about whether in cases such as this, a mandatory condition is ‘imposed’ and therefore whether it can be directly considered in the assessment of whether the applicant would comply.[1] On this view, mandatory conditions may still retain relevance to the question of whether or not the applicant will abide by the conditions imposed. For example, a previous breach or a likely future breach of a mandatory condition might tend to indicate the applicant would not comply with other conditions imposed.

    [1] Krummrey v MIMIA (2005) 147 FCR 557.

30. In this case, I have considered the applicant’s previous immigration history. That history causes great concern that the applicant will comply with any conditions placed on his bridging visa. The applicant’s responses to my questions indicated to me that the applicant did not consider these breaches of immigration law serious or significant. He has been in Australia for ten years and, according to his evidence, has worked in that time. He has been unlawful in the community for two periods, both significant periods of time. He was directly told by the Department that he could not work in 2017 yet chose to return to work after stopping for a period. The applicant’s responses to questions about his past behaviour and immigration status were vague and he sought to shift some of the blame for these offences to his previous agent. I did not find this convincing because, as I pointed out to the applicant, he was aware that he was in Australia in 2006 to study yet he had ceased studying by 2007, and I consider that the applicant would have had some awareness that he needed to seek another form of visa or depart the country to remain lawful. When asked what he had thought about his immigration status in this period he said he had not thought about it that much. The applicant held a series of bridging visas after 2011, many with the no work condition, where it appears from his evidence that he worked reasonably consistently until he claimed to have stopped at the end of 2017 before resuming in early 2018 and having his visa cancelled for working. I appreciate that the applicant may have wished to provide for his family, but it also tends to indicate that the applicant has not complied with immigration requirements where it has not suited him.

31. Having considered his evidence and the information put to him under s.359AA as well as that in the Department decision, I find that the breaches of immigration laws in the applicant’s case – the long periods of unlawfulness and his working in breach of conditions on his bridging visas – are significant, both in the periods of time he was in breach, the seriousness of the breaches, but also because this was not a single or isolated breach but appears to be a pattern of behaviour and to have been wilfully breached. Whilst I accept that there are mitigating circumstances for the breaches of the no work condition because he wished to provide for his family, the applicant has not advanced any mitigating factor I have accepted for the periods of unlawfulness, nor do I accept that the applicant was compelled to work to support his family – there appears the possibility his wife could have worked and he has claimed significant savings. The applicant did not demonstrate contrition for the prior breaches at all.

32. Given these findings I turn to consider the likely conduct of the applicant. I do not believe, given the above, that the applicant will abide by conditions imposed on the visa where these do not suit his interests. I find that the applicant is very likely to resume working given his past conduct, if not immediately then after some time being in the community. I further find that in an effort to disguise this conduct the applicant is likely to change the family address and cease reporting to the Department. I have no confidence that the applicant, having wilfully and for significant periods breached immigration laws, would now comply with any conditions, and specifically with the ones I consider it appropriate to impose.

33. I find that the applicant will not abide by conditions imposed on the visa without financial incentive.

34. I have further considered whether the conditions will be met if a security is taken. This is in the context that the Department decision maker did not request a security, but did contemplate whether such a request should be made. The applicant proposed that he could pay a security of $40 – 50,000. However, as I discussed with the applicant, there are two significant reasons why I do not accept that a security would ensure his compliance with conditions. Firstly, as I noted to him, it appears from the Department decision that a security of $20,000 was imposed on a prior bridging visa, and that this did not appear to have had an effect upon the applicant’s behaviour who appears to have continued working, the reason for which, as he acknowledged, his previous bridging visa was cancelled. This indicates to me that a financial incentive, of this or even of the larger amount he proposes, may not change the applicant’s behaviour and encourage his compliance with conditions. Secondly, if a security of much more than this is requested and taken, this would tend to cut into the applicant’s claim that he would support himself and his family on his savings. When this was pointed out to him he said his wife could work and he could care for the kids, but his wife is not currently employed. This is a somewhat invidious position to place the applicant in, but it does further lead me to doubt that the applicant would comply with conditions were a security of the amount he has proposed be taken. When I consider these concerns with my findings above about his past immigration history, I am not satisfied that the applicant will abide by conditions if a security is imposed.

35. 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

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

37. 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

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

    Sean Baker
    Member