1838023 (Migration)

[2019] AATA 1596

1838023 (Migration) [2019] AATA 1596 (9 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1838023

MEMBER:James Silva

DATE:9 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 09 January 2019 at 3:51pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 73, 189, 501K
Migration Regulations 1994, Schedule 2, cl 050.212, 050.221, 050.223, 051.211, Schedule 8 Conditions 8101, 8401, 8505, 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 under s.73 of the Migration Act 1958 (the Act).

2. The applicant is a Malaysian national, born in [year]. He entered Australia in July 2016, as the holder of an Electronic Travel Authority (ETA) visa. The applicant lodged Protection visa applications in October 2016 and July 2017, both of which were found to be invalid. He was granted Bridging visas associated with those lodgements. The applicant was charged with criminal offences in November 2017, and remanded in prison until September 2018, when he was released on bail. On 19 September 2018, he was transferred to [a named] Immigration Detention Centre (IDC), where he currently remains. In November 2018, the [named] Magistrate Court dismissed the criminal charges. On 18 December 2018, the applicant lodged a Protection visa application that the Department assessed as valid. That application is still ongoing.

3. On 20 December 2018, the applicant lodged an application for a Bridging visa E. At that time, Class WE contained two subclasses: Class 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).

4. On 24 December 2018, the Minister’s delegate refused to grant the visa. The delegate was not satisfied that the applicant would abide by the conditions of the visa, as required by cl.050.223. The delegate assessed that the imposition of a security, regardless of the amount, would not secure compliance with the visa conditions, and did not request any bond.

5. The applicant seeks review of the delegate’s decision.

6. The issue in this is case is whether, if the applicant is granted a Bridging visa E, he will abide by the conditions imposed on it: cl.050.223 of the Regulations.

7. For the following reasons, the Tribunal has concluded that the matter should be affirmed.

8. In summary, if the applicant is granted a Bridging visa E, condition 8101 (No Work) must attach to it, in the particular circumstances of this case. The applicant emphasised that he would abide by this condition and any others that attach to a Bridging visa E. However, the Tribunal considers that he came to Australia for the express purpose of working, and that he will be highly motivated to do so in the future, even in breach of condition 8101. Also, the applicant has no financial resources to support himself without working. He claimed that a cousin in [state] will house and support him, but the applicant has little information about this person or his capacity to provide support. The Tribunal considers the applicant’s hope that he may be eligible for Centrelink benefits to be vague and speculative. As a result, the Tribunal is not satisfied that the applicant will abide by condition 8101, if granted a Bridging visa. It also considers that no amount of security, even if available, would act as incentive for the applicant to comply with the visa conditions.   

   CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

   Evidence before the Tribunal

9. The Tribunal has before it a range of material, including relevantly:

   §  The applicant’s review application form, lodged on-line. This has attached to it the following:

   -   The cover page of the applicant’s Protection visa application of 5 July 2017, which he appears to have inadvertently provided, instead of the delegate’s decision record that is subject to this review.

   -   In relation to the criminal law matters, a letter from [his solicitors] advising that the [named] Magistrates Court dismissed the charges against him on 21 November 2018; and a bail undertaking of 19 September 2018 which required, among other things, that the applicant reside at an address [Suburb 1].

   -   Various certificates of participation and statements of attainment relating to the applicant’s period in [Prison 1].

   §  The Tribunal has before it the following documents and records from the Department file:

   -   Notes from a Located Person Interview conducted with the applicant on 19 September 2018.

   -   Notes from a Detention Client Interview – Part A conducted on 20 September 2018.

   -   Department notes which include photocopies of the applicant’s identity documents, namely the first page of his Malaysian passport; his Malaysian ID card; two driving licences; and an untranslated document, referred to in notes as a Malaysian ‘work card’.

   -   Notes of Bridging visa E interview held on 21 December 2018.

   -   A copy of the delegate’s decision record of 24 December 2018, and notice of decision.

   -   A copy of the applicant’s Protection visa application lodged on 18 December 2018.

10. The applicant appeared before the Tribunal to give evidence and present arguments on 8 January 2019. The hearing was held via video conference between the Tribunal’s Sydney office and [the] IDC. An interpreter in the Malaysian and English languages assisted. The applicant is unrepresented in this matter. The applicant did not submit any documentation at hearing. During the course of discussion, he mentioned that a cousin in [state] who would be able to provide accommodation and other financial support. The applicant had little information about this person’s circumstances. He provided this person’s mobile telephone number. However, he did not request the Tribunal to contact the cousin. In the circumstances, particularly given the applicant’s vague comments about his cousin, the Tribunal did not take the initiative to make the call.   

    Background

11. The applicant’s background and migration history provide context for this decision. The following brief summary is based on the delegate’s decision record and the applicant’s evidence at the Tribunal hearing.[1]

    [1] The applicant gave details of his experiences in Australia at the hearing, consulting his paperwork (including Department correspondence) in giving dates. The only apparent confusion was that he did not distinguish between the lodgment of his Protection visa applications and the associated grant of Bridging visas; and he said he did not know the reason why his first two Protection visa applications were ‘refused’ (in other words, found invalid).

12. The applicant is [an age] year old Malaysian man. He arrived in Australia in July 2016 as the holder of an Electronic Travel Authority visa, valid for 90 days.

13. The applicant lodged a Protection visa application in October 2016, which was found to be invalid in February 2017. It appears that he did not attend a biometrics appointment to confirm his identity. He lodged a second Protection visa application in July 2017, which was also found to be invalid in October 2017. In both instances, he obtained a Bridging visa associated with the applications. The first of these was a Bridging visa A (with work rights) that expired in March 2017, and the applicant remained in Australia without a visa until early July 2017 (when he lodged the second Protection visa application). The second was a Bridging visa C (with condition 8101), which expired in October 2017.

14. On 30 November 2017, the applicant was charged with a criminal offence and remanded in custody in [Prison 1]. On 19 September 2018, he was released on bail, and Immigration officials detained him under s.189 of the Act. He was transferred to [the] Immigration Detention Centre (IDC), where he remains to date. [In] November 2018, the [named] Magistrates Court dismissed the criminal matters. At hearing, the applicant said that he had been charged with various offences (including further matters before [another] Magistrates Court), but went on to say that all charges have been dismissed and there are no ongoing criminal matters.

15. On 18 December 2018, the applicant lodged a Protection visa application, which is ongoing.

    Primary criteria: cl.050.212

16. The applicant must, at the time of application, meet one of the alternatives set out in cl.050.212(2)-(9). Relevantly to this matter, the primary criteria include cl.050.212(3), namely that the applicant has applied for a substantive visa of a kind that can be granted while he is in Australia, which has not been finally determined. He relied on his Protection visa application which he had lodged on 18 December 2018. The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.

17. The Tribunal is satisfied that the applicant met cl.050.212(3) at the time of application, on the basis of the valid Protection visa application that he lodged two days earlier. The Tribunal is also satisfied that the application is ongoing at the time of this decision. The applicant therefore meets cl.050.221.

    Compliance with visa conditions: cl.050.223

18. 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.

19. When considering cl.050.223, the Tribunal must first consider which conditions, if any, should be imposed and whether it is satisfied that the applicant would abide by those conditions.

20. In this case, the applicant has applied for a substantive visa that has not been finally determined: cl.050.212(3).

21. The Tribunal considers that the following conditions should be imposed in the circumstances of this case[2]:

    8101     The holder must not engage in work in Australia

    8401     The holder must report:

    (a)      at a time or times; and

    (b)      at a place;

    specified by the Minister for the purpose.

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

    8564No criminal conduct.

    [2]  Cl.050.613A specifies the conditions that apply to the grant of a Bridging visa to a person who applies for a protection visa (with a limited exception that is not relevant to this case). Condition 8101 (No Work) is mandatory (again, with a limited exception that is not relevant to this case). Conditions 8201, 8207, 8401, 8505, 8506, 8507, 8508, 8510, 8511, 8512 and 8548 may be imposed.

22. The Tribunal has significant concerns about the credibility of the applicant’s claims and evidence. As detailed below, the Tribunal found his statements about his purpose for visiting Australia, his activities during his first three months in this country, and his future intentions, to be brief, vague and lacking in context and reasoning.

    Condition 8101 (No Work)

23. The Tribunal indicated at hearing that condition 8101 is a mandatory condition that applies to a Bridging visa E, in the particular circumstances of this case. The applicant said that he understood this. He promised to comply with the visa condition. The Tribunal has had regard to the following factors in assessing his future compliance with this condition.

24. Purpose of visiting Australia: The applicant entered Australia on an ETA visa (Visitor visa), and told the Tribunal that he came for a three-month holiday. He said that he had been working in the [specified] sector in Malaysia, and he brought about $A3,000 to $4,000 in cash for his holiday expenses.

25. The applicant said that he travelled to [Town 1] ([in a specified] region of [the state]), near [Town 2]. He stayed there and in [Town 2] for about two months. The Tribunal asked for details, such as how he selected [Town 2] as a holiday destination from Malaysia; his activities there; and his accommodation.

    §  The applicant explained that he first went to [Town 3], and some Australian citizens he met there recommended he go to [Town 2] to see its historical sites. He said that the town is small and peaceful, and he spent his holiday reading novels and getting to know the local people.

    §  In response to further questions, the applicant said that he stayed in a low profile, inexpensive hotel, and cannot now remember its name. He went on to clarify that he was in fact living in a share house during this period.

    §  As for his contacts with the local community, and whether anyone could vouch for this, the applicant replied that he lost contact with these people during his time in prison. He had sent an email to someone, but received no reply.

26. In the Tribunal’s view, the applicant’s account of the reasons for his travel to Australia and his activities in the first three months lacks credibility. He was unwilling or unable to provide insights as to why he travelled to [City 1] and [Town 3] in the first place; or why he selected [Town 1] and [Town 2] as quiet locations to read books and meet locals. His evidence about his holiday accommodation was vague and changeable, and he was unable to provide details of having socialised with the local community. The applicant’s subsequent evidence, relating to his Bridging visa A with work rights, and his employment, reinforce the Tribunal’s doubts.

27. In sum, the Tribunal does not accept that the applicant came to Australia for a holiday, that he brought sufficient funds to support himself without working during this period, or that he did not engage in any paid employment during the first three months.

28. Activities from October 2016 on: The Tribunal asked the applicant how he met his expenses after his first three months in Australia. He said that three months after arriving in Australia, he returned to [City 1] and met his cousin, who told him that his life would be in danger if he returned to Malaysia. The applicant then decided to lodge a Protection visa application. Consulting his paperwork, he said that he applied for that visa on 31 October 2016, and was granted a Bridging visa A (with work rights). However, he said that that application was ‘returned’ in February 2017 (an apparent reference to it having been found to be invalid). He added that he only found out about it in March or April 2017, when he returned from [Town 1]. When asked by the Tribunal why he had visited [Town 1] again, he replied that he was there on holidays. The Tribunal does not accept that as truthful. It was in the context of explaining how he met his expenses after his first few months in Australia that the applicant went on to state that he had been granted a Bridging visa A (with work rights). He then explained why he missed the Department’s correspondence by saying that he had been in [Town 1]. The Tribunal finds that he was in [Town 1] for work, not just during this period (when he was permitted to work on his Bridging visa A), but from the time of his arrival in Australia. The applicant’s lack of candour reinforces the Tribunal’s concerns about his credibility as a witness.

29. The applicant’s financial assets: The applicant initially told the Tribunal that he has some $3,000 or $4,000 in savings, but later corrected that to say that he in fact has no money. He claimed that he has some personal items in the house where he lived previously, which is owned by his former employer ‘[Employer A]’. The applicant said that he is no longer in contact with his former employer, but a friend is still living there, and will help him retrieve the items. The applicant did not state, and there is nothing to suggest, that these items will generate income for him to cover his living expenses.

30. The applicant said that, if he is granted a Bridging visa E, he intends to approach Centrelink for the payment of monies relating the period that he was in prison. In support of this, the applicant mentioned the [state agency for] Corrective Services form that he had submitted. Titled ‘Identification for Centrelink’. This states the applicant’s period of imprisonment (November 2017 to September 2018), and refers him to Centrelink ‘to be considered for payment of Special Benefit and Unemployment Benefit’. The applicant said he would pursue this if he was released from detention. He had no further information about his eligibility for any such benefits, or the amount or duration of any such payments. The Tribunal considers it surprising that the applicant has not made any enquiries, given the potential significance of such payments to him personally, and his prospects for obtaining a Bridging visa.

31. The applicant linked his Centrelink claim with his period in prison, and spoke in terms that suggested he thought of it as compensation. According to the Department of Human Service’s webpage[3], a Special Benefit is available for persons in severe financial hardship, and requires that a person is an Australian resident or the holder of a certain temporary visa. At face value, the ‘Identification for Centrelink’ form appears to be no more than a document that the prison hands to all prisoners being released, for any future applications they may make to Centrelink, rather than a statement indicating that the prisoner has some entitlement. The Tribunal finds the applicant’s suggestion that he may obtain Centrelink benefits to be highly speculative. It is not satisfied on the limited available evidence that he would receive benefits, or that these would obviate his need to work in breach of condition 8101.

    [3]

32. Support in the community: The applicant stated that his cousin, [Cousin A], who lives in [Suburb 1], would be able to support him. He said that he had last spoken to his cousin the previous week, and he had confirmed his willingness to assist. The applicant said that his cousin is a Malaysian national (not an Australian citizen or permanent resident); that he has a Bridging visa A (although the applicant is not sure of the background); that he is working in [Suburb 1] (although the applicant does not know what work he does); and that (to the applicant’s knowledge) [Cousin A] has no assets here. The applicant gave [Cousin A’s] mobile telephone number, but did not expressly ask the Tribunal to contact him. Given that the applicant did not appear to know [Cousin A] well, the Tribunal decided not to initiate any contact with him.

33. The Tribunal accepts, on the basis that it is plausible, that [Cousin A] would have vouched for the applicant and undertaken to support him, if asked. However, the applicant gave minimal insight into [Cousin A’s] reasons for coming to Australia, employment and financial situation. It is possible that the applicant genuinely does not know these details, which raises questions about the nature of their relationship and the value of any undertaking that the cousin may give to support the applicant. It is also possible that the applicant deliberately avoided specific responses, for reasons that are not entirely clear. In any event, the Tribunal’s concerns about the applicant’s general credibility, and the lack of detail and corroborative evidence about [Cousin A’s] capacity and willingness to support the applicant financially and with accommodation, leave it unable to be satisfied that the applicant has support such that he would not need to work in breach of condition 8101.

1. The Tribunal asked the applicant whether anyone else in the community, particularly in [Suburb 1], would be able to provide financial or similar support. Prompted by the Tribunal whether he had previously mentioned a former employer named [Employer A], the applicant replied that he and [Employer A] are no longer in contact, following his (the applicant’s) period in prison. He went on to say that his personal effects are at [Employer A’s] house, but he has a friend living there who is still in contact with.

   Conclusion

2. The Tribunal notes the applicant’s verbal assurances that he understands condition 8101 and will abide by this condition, if granted a Bridging visa E. However, it has broad concerns about the applicant’s credibility. It considers that he came to Australia for the purpose of work, and that he had paid work including during periods when this was not permitted (such as his first three months in Australia). The applicant appears to have minimal financial resources of his own. His suggestion that a cousin in [City 1] would support him is vague, and lacks corroborative evidence. The Tribunal considers the suggestion that he might receive Centrelink benefits to be unsupported and speculative.

3. For the reasons given above, the Tribunal is not satisfied that the applicant will abide by condition 8101, of not working in Australia.

   Compliance with other conditions

4. Given the Tribunal’s lack of satisfaction about the applicant’s compliance with the mandatory condition 8101, it is unnecessary to determine whether he would comply with other visa conditions, namely condition 8401 (Must Report), 8505 (Continue to Live at Specified Address) and 8564 (No Criminal Conduct).

5. The applicant gave a verbal assurance at hearing that he would comply with conditions 8401 and 8505. The Tribunal noted his account of the first two Protection visa applications having been ‘returned’, because he had been away at the time and had not received all the correspondence. As noted above, the applicant said that he did not understand what had happened to his applications, but it appears that they were deemed invalid because he had not attended appointments to have his biometrics taken. In any event, the Tribunal put to him that, by his own account, he appeared to have difficulties understanding and complying with rules relating to his migration status. The applicant reiterated that he would comply with the conditions of his visa, if granted.

6. The Tribunal makes no further assessment or findings in relation to the applicant’s future compliance with other visa conditions, in light of its conclusion above.  

   Security

7. The Tribunal has considered whether the applicant will abide by condition 8101, if a security is required, as a financial incentive for his compliance. The Tribunal is not satisfied that the applicant would comply with condition 8101, even with a security of any amount.

   Conclusion

8. On the available evidence, the Tribunal is not satisfied that the applicant will abide by visa conditions (in particular condition 8101), even with a security of any amount. It therefore finds that he does not meet cl.050.223.

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

10. 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

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

    James Silva
    Member

    
    

    RELEVANT LAW

    Class WE visas contain 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.

    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.

    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].

    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.