1900921 (Migration)

[2019] AATA 371

1900921 (Migration) [2019] AATA 371 (21 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1900921

MEMBER:Alison Mercer

DATE:21 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 21 January 2019 at 4:27pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (General) – ability to abide by visa conditions – poor immigration history – breached previous visa conditions –worked unlawfully in Australia – current criminal matters – unable to support himself without working – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 73, 189

Migration Regulations 1994 (Cth), Schedule 2 cls 050.212, 050.221, 050.223, 050.611B Schedule 8 condition 8101, 8401

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 10 January 2019. 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.050.212 and cl.050.223.

3. The decision to refuse to grant the visa was made on 14 January 2019 on the basis that the delegate was not satisfied that the applicant would abide by the conditions that the delegate would impose on a bridging visa granted to the applicant. The delegate reached this conclusion having regard to the applicant’s migration history in Australia and lack of resources.

4. The Tribunal received a review application from the applicant on 14 January 2019, which was accompanied by a copy of the delegate’s decision.

5. The applicant appeared before the Tribunal on 18 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Issues for consideration

7. 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. If the applicant meets these, the Tribunal must be satisfied that the applicant meets cl.050.223; that is, the Tribunal must be satisfied that the applicant would abide by the conditions that the Tribunal would impose on that bridging visa.

   Applicant’s immigration history

8. The Department’s records indicate that the applicant is an Indian national who last entered Australia as the holder of a [temporary]  visa on [date]February 2018. This visa was apparently granted to the applicant for [a particular purpose]. The visa was granted with conditions 8107, 8109 and 8303, which stipulate that the applicant must only be employed by a particular employer, or undertake specific activities, in Australia; that the holder cannot change the details specified in the visa application; and that the holder must not become involved in activities disruptive to, or violence threatening harm to the Australian community, or a group within the community.

9. The Department’s records further indicate that the applicant’s [temporary] visa ceased on 23 March 2018, but the applicant did not depart Australia and became an unlawful non-citizen as of 24 March 2018. He remained unlawfully within the Australian community until 7 January 2019, when he was detained by [the]Police and subsequently detained under s.189(1) of the Act.

10. The applicant was interviewed by an officer of Australian Border Force (ABF) on 7 January 2019 after being arrested by [the] Police at [Venue 1] for the theft of [property] to the total value of $445, and was identified as being an unlawful non-citizen. It was noted that the applicant was charged and bailed to appear at the Melbourne Magistrates’ Court on [date] March 2019. As recorded by the ABF officer, the applicant indicated as follows:

    ·     he had 4 children and he went to [Country 1] on a [temporary] visa but could not settle so came to Australia to support his family. He came to work. His family remains in India;

    ·     he paid approximately $12,000 to $13,000 for his Australian visa, and was able to do this through his own money and borrowing from relatives. He hired an agent who obtained the visa and told the applicant that he would be able to extend it in Australia;

    ·     he knew that his visa was valid for 1 month, but was uncertain as to why he held a [temporary] visa, [details deleted]. As for participating [certain activities]in Australia, the applicant said that this is what he had to say to get the visa. He did not undertake any [work]in Australia;

    ·     he was aware that his visa expired about 8 months ago but thought that he would stay for as long as he could to support his family. He was aware that his agent was getting him a visa through fraudulent means but this was just what had to be done. He was living in Australia to support his family and was not doing anything wrong;

    ·     he denied that he had stolen [property] at [Venue 1]; there was a mix up or misunderstanding;

    ·     he had been working in [a particular industry] since about 7 or 8 March 2018, earning approximately $700 per week, and had sent back maybe $12,000 to $13,000 to his family members in India. He had about $500 in an Australian bank account and the [Police] confiscated $680 from him;

    ·     he owed his uncle in India about 1.5 lakhs; and

    ·     he hoped to get a work visa in Australia.

11. On 10 January 2019, the applicant applied for a Protection visa, and also made his present application for a bridging visa E.

12. On 11 January 2019, the delegate interviewed the applicant for the purposes of his bridging visa E application, in which the applicant indicated (in summary):

    ·he had some land in India. His migration history started when he returned from [Country 1] to India in late 2016 – early 2017. That is when he started having problems as another person tried fencing off part of a vacant block he owned;

    ·he intended to remain in Australia until the problems in India were solved;

    ·he had about $400 to $450 in a bank account in Australia and no other assets. He could not say how he would support himself in Australia.  He was unsure whether he would need to work;

    ·the reason he came to Australia was to be safe, and for the protection of his family as well, and to earn money. He did not come for the purposes of the [temporary] visa, but for safety;

    ·he did not approach the Department after his [temporary] visa ceased because he did not know how to start the process. He thought that he could stay in Australia for 1 to 2 years and then it would be safe to go back to India. His wife and sister were in India, and he was waiting for them to tell him it was safe to return. He wanted to stay abroad. He could have stayed in [Country 1] as his children were born there and he was eligible for permanent residency;

    ·he disputed that he had been refused a visa extension in [Country 1] due to lack of funds (as stated in his previous interview) and said that he wanted to go back, and his son wanted to come, but the funds provided in the application were those in his father’s account, not his;

    ·if not permitted to work in Australia, he could get money sent from India. In 2 to 4 months, or maybe 1 year, the problems in India would resolve themselves as well. If he could remain in Australia, he would remain living in [Suburb 1], where he had been living before. He met some people at a temple and stayed with them, and he would be able to do so again. The people who let him stay there said that he could stay, for maybe up to 6 months, without paying rent. They said that he could pay rent later on, when he had the means to do so;

    ·he was not intending to study in Australia, but wanted his children to do so;

    ·when asked why the delegate would be satisfied that the applicant would report to the Department given that he had not contacted the Department after his [temporary] visa expired, the applicant said that he did not know what to do or what to apply for, nor did he have any money for a lawyer. He did want to return to India, but not until the problems had been resolved;

    ·in relation to not engaging in criminal conduct, the applicant maintained that he went to [Venue 1] and [an incident occurred], but this was disputed. He agreed to return the [property]but they took $680 from him. He was not aware of any charges against him; and

    ·he understood that he would not be allowed to work and would abide by any conditions imposed. He was in Australia for his safety.

    Delegate’s decision

13. The delegate refused to grant the applicant a bridging visa E on 14 January 2019. In making this decision, she noted that she would impose the following conditions on any bridging visa granted to the applicant:

    ·8101 – no work;

    ·8207 – no study;

    ·8401 – report as directed;

    ·8506 – notify of change of address within 2 working days; and

    ·8564 – not engage in criminal activities.

14. The delegate was not satisfied that the applicant would comply with all of the above conditions. She considered the applicant’s immigration history, and his responses in the [Police] interview on 7 January 2019 and his interview with the delegate on 11 January 2019, and concluded that he did not appear to have the resources to support himself in Australia without working (although he claimed he could do so), and that he had a demonstrated history of having worked unlawfully in Australia in contravention of his previous visa, and then while unlawful. The delegate also formed the view that the applicant would not comply with the reporting condition, given his earlier reasons for being in Australia (to work to support his family), his contravention of his previous visa conditions, his failure to contact the Department after the cessation of his [temporary] visa and his incentive to remain in Australia even if he received a negative outcome in relation to his Protection visa application. She was not satisfied that the applicant would notify of any change of address, for the same reasons. The delegate was satisfied, however, that the applicant would abide by the conditions prohibiting him from study in Australia, and from engaging in criminal activity, as she accepted that the [Venue 1] incident appeared to be a one-off occurrence.

15. Overall, the delegate made general findings that the applicant had little regard for Australian migration law, had knowingly breached the conditions of the only Australian visa he had held, and had made no attempt to make arrangements to depart Australia after that visa ceased, or to apply for another visa. She further found that if he had not been detained on 7 January 2019, he would still be living and working in Australia unlawfully, and that if he were released from detention, he would be likely to be breach the conditions of his bridging visa due to his desire to remain in Australia to earn money.

    Tribunal hearing

16. The applicant stated that he did not have an agent. He said that he got his wife in India to research things on the internet and then he made a protection visa application on 10 January 2019 with her help, and the help of another Indian boy at the Detention Centre. The applicant said that the basis of his claim for a protection visa was a land dispute he was involved in in India. He told the Tribunal that he went with his family to study in [Country 1] in 2010 and when they returned to India in 2014, he bought a plot of land about half an hour away from his family home. The purchase was made with the intention of building a larger house for his family when he had funds to do so. The applicant said that they needed a bigger house as he and his wife had 4 children (a son born in 2007, a daughter born in 2009 and twin sons born in 2013). The applicant said that sometime after the purchase, he came to know that someone had built on this land; that is, that someone had fenced it off. The applicant said that he went there to investigate but no one would tell him who had done this. Ultimately, he hired some labourers and they knocked down the fencing. About a week after this, he was attacked by 10 to 12 people, and he believed that these ‘goons’ were the people who tried to take his land. The applicant said that one could not mess with such people in India.

17. The applicant said that subsequently, his parents advised him to leave the country to avoid any further issues. The applicant said that he knew he could not easily return to [Country 1], as a further visa application he made previously had been rejected due to concerns about whether he had sufficient funds. Someone else suggested that he go to[Country 2] but he did not feel that this was safe. Then a relative suggested Australia, and introduced him to an acquaintance who could arrange this. The applicant said that he thought Australia would be safe so he paid Rs 500,000 to this agent, plus the airline ticket (6 lakh in all) to do so. In response to the Tribunal’s query, the applicant said that they used his father’s savings and a loan from his uncle of 1.5 lakh. He confirmed that he still owes this money to his uncle.

18. In response to the Tribunal’s query, the applicant said that the acquaintance told the applicant that he would get him into Australia, and he could then arrange to get the applicant a work permit, if the applicant could pay the required amount for this. The applicant said that he understood that the visa he was granted was [a temporary]visa that would allow him to stay for 1 month only. He said that he never did any performing and never intended to do so. He maintained that he only came to Australia to escape the problems in India and that he intended (and still intends) to go back there once the problems there have resolved. He came here for safety.

19. In response to the Tribunal’s query, the applicant said that at the end of 1 month, he decided to stay in Australia and see what happened. He said that he could not afford to pay the original organiser to obtain a work permit but he could not return to India. He did not know anyone or what to do so he just remained here. He knew that he was unlawful. He lived off his savings for as long as he could and when these ran out, he went to a  [Temple] and  they arranged accommodation for him in [Suburb 1].  He also found work, explaining that if someone at the Temple needed workers, he would do it. The applicant said that he worked in [an industry]in [Country 1] and had extensive experience [in this industry] so he did that work here for cash. He estimated that he worked 2 to 4 times per week generally, but sometimes more. The applicant said that the home he was living in in [Suburb 1] was owned by 2 brothers from an area in India near his family home. The others living there when he moved in were 2 Indian students and a family. His rent was $400 per week but the landlords were flexible and if he said that he could not pay it, they did not make him. The applicant confirmed that he lived at this address up until he was detained by [the] Police on 7 January 2019.

20. The applicant confirmed that his parents and 2 brothers live together in India, together with the applicant’s wife and 4 children. The applicant’s parents are now retired. His father previously[ worked in different roles]. His brothers are married with their own families. His wife mainly looks after their children but does [casual]work in the evenings. The applicant said that he did not have a sister, so any reference to that in one of his interviews was incorrect.

21. The applicant said that he sent back money roughly every month to his father, who distributed it as necessary to support his parents and his family. Usually it was $400 to $500 but sometimes $1,000, depending on how much work he had and how much he could save. The applicant’s father, though retired, does some [other] work to keep active. The applicant’s father earns about Rs 20,000 per month. The applicant’s wife wife earns about Rs 40,000 to 50,000 per month [from casual work]. The applicant said that, as the oldest son, he mainly supports the extended family, along with his father.

22. The applicant said that he spoke to his family in India every day and when they tell him it is safe to go back, he will go back. It could be 2 to 4 months, or maybe up to 2 years. In response to the Tribunal’s query, the applicant said that he did not take legal action and/or involve the police about the land dispute because this would have made it worse for his family in India. The police were corrupt. He would not be safe anywhere in India. The applicant then said that the main leader of the goons had been arrested but it was still not safe to go back as this person was in and out of custody. He conceded that the police in India were actively engaging with goons but maintained it was still not safe for him to return and that this was the reason he came to Australia and was seeking protection.

23. The Tribunal put to the applicant the contents of the police interview (as summarised by the delegate, a copy of whose decision was provided by the applicant with his review application) in which he indicated that his main reason for being in Australia was to earn money to support his family in India. The Tribunal indicated that this undermined what he was now claiming. The applicant said he had been drinking alcohol when he was interviewed by [the]Police and could not remember clearly what he had said. He further said that when he was subsequently interviewed by the delegate, he was asked if there was any reason that he could not return to India, and that is when he mentioned the land dispute. He said that he did not want to live overseas; if he had wanted that, he could have applied for permanent residence in [Country 1] as his sons were born there. He maintained that he was in Australia only until it was safe for him to return to India.

24. The Tribunal observed that the information given by him to the [Police] and the delegate indicated that he needed to work in Australia to support himself and his family in India, and that this undermined the Tribunal’s confidence that he would abide by condition 8101 (no work). The applicant said that he would follow any rules that were applied to him. If he had to report, he would report to the Department. He would be able to support himself because his family in India could provide funds, and he could return to his accommodation in [Suburb 1]. The Tribunal observed that the applicant had clearly not previously obeyed Australian immigration law, as he had consciously stayed on after his visa expired, worked without permission and had taken no steps to contact the Department. The applicant said that he did not contact the Department because he did not know what to do and had no one to advise him. The Tribunal noted that he had stated that he was assisted by people at the  [Temple] and also by his landlords in Australia, which undermined his claim not to have access to assistance or information. It also noted that once detained, he was able to get his wife to conduct internet research on his behalf and then apply for a protection visa. It queried why he did not do anything before he was detained. The applicant said that he was reluctant to tell anyone in Australia that he did not have a visa. When asked what he told the people at the Temple, his landlords and the people he worked for, the applicant said he just said that he had a visa, and no one asked him what kind. He then said that when employers asked, he said he had a student visa. He said that he told people this as he knew that 2 of the other housemates in [Suburb 1] were studying here. The Tribunal observed that this seemed to indicate that the applicant had a reasonable knowledge of the Australian immigration system, or the means to acquire it. The applicant said that he did not know much. The Tribunal observed that it appeared that the applicant would have continued to live and work in Australia unlawfully indefinitely, had he not been detained by the police on 7 January 2019. The applicant denied this.

1. In relation to whether he currently faced criminal charges in Australia, the applicant told the Tribunal that on 7 January 2019, he went to [Venue 1]. He described [the incident]. The police were called and he was told to repay $435 and that if he did so, he would not be charged. He refused and said that he wanted to see the video footage as he did not believe that he had done anything deliberately wrong. The police confiscated the cash he had on him ($680) and said that he had to appear in court on 15 March 2019. He has not received any paperwork to confirm this and has no legal representation in relation to these matters. He said that it was all a misunderstanding.

2. In response to the Tribunal’s query, the applicant said that if released from detention, he would return to the [Suburb 1] house. When asked if he was assuming he could do this, or had actually got permission from the landlords, the applicant said that the landlords are currently back in India. He has spoken to them on the phone and told them that he has been detained and that they said that they would wait to see what happened. However, he was confident he could return to the house. His things are still there, and no one has moved them out. He has paid a month’s rent. His parents would be able to send money. He estimated that they and his wife could probably provide the equivalent of AUD $500 to $600 per month to support him in Australia, so he would not need to work. They could do this for as long as required – maybe 1 to 2 years. The Tribunal observed that this was difficult to accept, given his earlier evidence about sending money back to India to support his family, especially as it might take 6 to 12 months for his protection visa application to be determined. The applicant insisted that they could.

3. The Tribunal noted that if it had doubts about whether the applicant would comply with the conditions that it would impose on a bridging visa, it had to consider whether the imposition of a bond, to be held by the Department, would make his compliance more likely. The applicant asked how much he would have to lodge. The Tribunal indicated that it depended: it could not be an amount so low that it would not act as an incentive for compliance, but it could not be so high as to be impossible for him to provide. The applicant said that his total funds in Australia were about $1,100. The Tribunal indicated that this was not a particularly large amount of money and might not satisfy the Tribunal as being a sufficient incentive to comply. The applicant said that if his Indian relatives liquidated a term deposit there, they might be able to provide an additional $1,000 but they would not be able to afford more than this as otherwise, they would not be able to support themselves and support him in Australia for the period required before he could return to India.

4. The applicant said that whatever the rules and regulations were, he would abide by them if granted a bridging visa. He told the Tribunal that he had lived in [Country 1] for several years and had never broken the law there. The Tribunal indicated that it had to weigh this against his Australian immigration history, which suggested that he deliberately breached the law in order to remain in Australia indefinitely and unlawfully, and to work unlawfully.

   The grounds for seeking the visa - cl.050.212

5. 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.

6. 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. For the reasons below, the Tribunal finds that the applicant meets cl.050.212.

   Substantive visa application

7. Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

8. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act.

9. Having reviewed the Department’s records, the Tribunal is satisfied that the applicant has made an application for a Protection visa on 10 January 2019, which is a substantive visa, and that that application has not been finally determined.

10. Accordingly, the applicant meets cl.050.212(3).

    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 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.

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. 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.

14. In this case, cl.050.223 and cl.050.611B apply. These clauses prescribe 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:

    ·8101 – no work;

    ·8401 – report as directed;

    ·8505 – reside at specified address

15. The Tribunal notes that the delegate stated that she would impose conditions 8506 (notify of change of address within 2 working days) and 8564 (not engage in criminal activities); however, these are not listed in cl.050.611B as being applicable to an applicant who comes within cl.012.212(3).

    Condition 8101 – no work

16. The Tribunal harbours significant concerns about whether the applicant would abide by this condition. Having considered the available evidence, the Tribunal considers it more likely than not that the applicant’s predominant purpose in coming to Australia was to earn money by working unlawfully for as long as possible, and not because of fears for his safety in India. If it found this to be the case, such a deliberate action by the applicant would indicate to the Tribunal a propensity on the part of the applicant to work in breach of his visa conditions.

17. Even if the Tribunal were to extend the benefit of the doubt to the applicant and accept that he was motivated to come to Australia due to difficulties he faced in India over a land dispute, the fact is that, on his own evidence, he deliberately worked for cash in Australia in breach of the [temporary] visa conditions, and he continued to do so after becoming an unlawful non-citizen when that visa expired. He was aware that he was not permitted to work but did so anyway. This again indicates propensity on the part of the applicant to work in breach of his visa conditions and/or in breach of Australian immigration law.

18. Finally, the Tribunal was not satisfied from the applicant’s evidence that he would not need to work in Australia. Although the applicant indicated that his father and his wife in India could, from their earnings, send money to the applicant that would cover his rent and expenses in Australia for a substantial period, he was not able to explain why it was that prior to being detained, he sent money to his family in India. The fact that the applicant worked unlawfully in Australia with the express aim of sending funds to his family in India clearly undermines his claim that they could now support him, especially if – as discussed at hearing – the determination of his protection visa application might take 6 to 18 months. The Tribunal does not accept as plausible that the applicant’s family in India would now be able to support him such that he would not need to work if released from detention. Nor is the Tribunal satisfied that the applicant would be provided with ongoing accommodation at his previous residence, as it has no evidence from the landlords to suggest that this would be the case. The applicant did not identify any other source of income available to him, apart from approximately $1,100 in funds he holds in Australia (noting that [the] Police have yet to refund him $680 of this, and it is unclear whether or not this will occur).

19. The Tribunal finds that the applicant’s financial circumstances suggest that he would have a need to work if released from detention, and he has a demonstrated history of having done so knowingly in breach of Australian immigration law in the recent past. The Tribunal is therefore not satisfied that the applicant would abide by condition 8101.

    Condition 8401 – report as directed

20. The Tribunal has similar concerns about whether the applicant would abide by condition 8401, despite his assurances to the contrary. This is due to his demonstrated history of knowingly deciding to stay in Australia and continuing to work after the expiry of his [temporary] visa and his failure to approach the Department or take any steps to depart, or alternatively, to regularise his status until after he was detained by [the]Police. The Tribunal does not accept that the applicant lacked the capacity or opportunity to do so, but rather, it finds that he chose not to do so.  This gives the Tribunal little confidence that he would continue to engage with the Department should he be released from detention, particularly as the Tribunal considers that he also has an incentive to work unlawfully.

21. Given the above, the Tribunal is not satisfied that the applicant would abide by condition 8401.

    Condition 8505 – reside at specified address

22. The applicant’s evidence was that he would be able to return to the address in [Suburb 1] where he was living at the time he was detained by the [Police] on 7 January 2019, as the landlords there were sympathetic to his circumstances, he had paid a month’s rent in advance and no one had removed his belongings while he had been in detention. The Tribunal has some concerns about whether the applicant’s landlords know the extent of the applicant’s current circumstances, and even if they do, whether they would be willing to provide accommodation to him for an unknown, possibly quite long period, while he awaits the outcome of his protection visa application, where he will not be allowed to work. As noted above, the Tribunal has serious concerns about whether the applicant’s family in India are in a financial position to support him so that he could pay the $400 per week rent, or alternatively, whether the applicant’s landlords would be prepared to accept him living there for a prolonged period paying no or very little rent.

23. Given these uncertainties, and a lack of any kind of undertaking from the applicant’s landlords, the Tribunal is not satisfied that the applicant would abide by condition 8505.

    Security bond

24. Given the Tribunal is not satisfied that the applicant would satisfy the above conditions that it would impose on a bridging visa granted to him, it has considered whether the lodgment of a security bond would alter its conclusions.

25. The applicant’s evidence was that he could utilise his funds in Australia of $1,100 (assuming the  [Police] return the $680 confiscated from him on 7 January 2019) and that his extended family members in India could potentially provide another $1,000 to contribute to a bond. Given the applicant’s immigration history in Australia, as outlined above, the Tribunal is not satisfied that lodgment of a bond of approximately $2,100 would secure the applicant’s compliance with the above conditions. This is particularly so as the Tribunal has assessed that the applicant would have a strong incentive to work to support himself.

26. For these reasons, the Tribunal finds that the applicant does not satisfy the criteria for the grant of a subclass 050 (Bridging (General)) visa.

27. 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

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

    Alison Mercer
    Member