1906158 (Migration)

[2019] AATA 3287

1906158 (Migration) [2019] AATA 3287 (25 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1906158

MEMBER:Tania Flood

DATE:25 March 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 25 March 2019 at 11:10am

CATCHWORDS

MIGRATION – cancellation – Bridging E (Class WE) – Subclass 050 (Bridging (General) – not satisfied the applicant would abide by conditions – charged with criminal offences – compelling reasons to work  – financial provider – decision under review affirmed   

LEGISLATION

Migration Act 1958 (Cth), ss 5, 73, 116
Migration Regulations 1994 (Cth), Schedule 2 cls 050.212, 050.223, 050.613A, 051.211, Schedule 8 Condition 8101

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 March 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 March 2019 on the basis that the applicant did not meet cl.050.223 because the delegate was not satisfied that the applicant would abide by conditions to be imposed by the visa.  The applicant appeared before the Tribunal 22 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.

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

   BACKGROUND

5. The applicant arrived in Australia [in] April 2017 as the holder of a Student visa (Subclass TU-500) which was valid until 9 April 2018.  On 28 February 2018 he was granted a Bridging visa (Subclass WA-010) valid until 28 March 2018.  On 28 March 2018 he was granted a further Student visa (Subclass TU-500).  On 3 December 2018 the applicant’s Student visa was cancelled under s.116 as he was charged with criminal offences.  Subsequently he became an unlawful citizen.

6. [In] January 2019 the applicant was located by [state] police for the purpose of serving an AVO and he was subsequently detained at [an] Immigration Detention Centre.

7. The applicant has been charged with various criminal offences – [details deleted].  The applicant was previously issued with an AVO where his ex-partner was listed as the protected person.  This AVO ceased [in] January 2019.  [In] January 2019 he was issued with an AVO where his current partner is listed as the protected person.

8. On 11 March 2019 the applicant lodged a valid Protection visa application. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The grounds for seeking the visa – cl.050.212

9. At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050212(2)-(9).  The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.

   Substantive visa application

10. 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.

11. ‘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.

12. The applicant applied for a Protection visa on 11 March 2019 and the application has not been determined.

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

    Whether the applicant will abide by conditions - cl.050.223

14. 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.

15. 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].

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.

17. In this case, cl.050.613A applies because the applicant has applied for a Protection visa and he is not a class of persons specified by the Minister for the purposes of cl.050.613A(1)(b). In these circumstances, condition 8101 (that the visa holder must not engage in work in Australia) is mandatory.  This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed.  The Tribunal considers that the following condition(s) should be imposed in the circumstances of this case:

    8401 (report at a time and place specified by the Minister)

    8506 (notify change of address)

    8564 (must not engage in criminal behaviour)

18. The Tribunal first considered the likelihood that the visa applicant will abide by the mandatory no work condition (8101) if the Bridging visa is granted.

19. During the Tribunal hearing the applicant testified that he has been in a relationship with his current partner for approximately one and a half years.  Prior to his detention he was living with his partner and her two children who are aged [age] and [age].   Further, he informed the Tribunal that his partner is about [number] months pregnant with his child. 

20. When asked if he intends to work if he is granted a Bridging visa the applicant stated that he really wants to work.  He said his pregnant partner already has two children and he needs to support them.  He confirmed his partner is not currently working and relies on Centrelink income and Red Cross assistance.  Despite this he said she is behind on the rent payments and has been asked to vacate the property.

21. The Tribunal asked the applicant whether he has any savings and he said he does not.  When asked if he has any other means of financial support he said that his family have assisted him in the past.  He said he received [amount] from his parents sometime in 2017.  The Tribunal enquired about his parent’s employment and he said his father no longer works for health reasons and his mother owns a [business].

22. The Tribunal also heard evidence from the applicant’s partner.  She confirmed that she is not working although she said she does some cooking at home and sells the goods for some extra income.  She confirmed that she is behind on her rent payments and could not recall her partner’s family providing them with financial support in the past.

23. The Tribunal put it to the applicant that it is concerned, given his financial circumstances, that he might breach condition 8101 (no work) if granted the visa, noting that it appears he will have no choice but to work in order to support his partner and her children.  The applicant agreed that he really needs to support his partner and the children.

24. In the Tribunal’s view, and as discussed with him at hearing, the applicant appears to have strong compelling reasons to work if he is granted a Bridging visa and is released from detention.  In forming this view the Tribunal notes the applicant has no money in the bank and whatever financial support he might be able to obtain from his parents is restricted to his mother’s ability and willingness to assist him.  Relevantly, and not withstanding that the applicant has produced no evidence of his claimed support from his family, the last time he received any financial support from them was in 2017.   In addition, the applicant has made it clear he feels responsible to support his partner and her children who are already in financial distress and facing eviction from their rented home.  While the applicant’s partner has indicated she is willing to resume living with him it appears she is in no position herself to meet his or indeed her own financial needs.  In the circumstances, the Tribunal is not persuaded that the applicant will not work if he is granted a Bridging visa.  Therefore the Tribunal considers he will not comply with condition 8101 if he is granted a Bridging visa.

25. In view of the applicant’s poor financial position, the Tribunal is not satisfied that any amount of security would act as an incentive for the applicant to abide by condition 8101 if he is granted a Bridging visa.

26. As condition 8101 is a mandatory condition in this circumstance the Tribunal has not found it necessary to consider whether the applicant will abide by the remaining conditions listed above.  That said, the applicant spoke passionately at hearing about his past mistakes and breaches of the law and the Tribunal was persuaded that he is genuinely remorseful for his actions.  Further, the Tribunal found his testimony in respect of his impending fatherhood moving and considers this is an incentive for him to refrain from drinking and to not reoffend. 

27. Notwithstanding the above, for the reasons outlined above the applicant does not meet cl.050.223.  Therefore the applicant does not satisfy the criteria for the grant of a Subclass 050 [Bridging (General)] visa.

28. 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

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

    Tania Flood
    Member