1906836 (Migration)

[2019] AATA 1213

1906836 (Migration) [2019] AATA 1213 (3 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1906836

MEMBER:Russell Matheson

DATE:3 April 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 03 April 2019 at 10:06am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – ongoing application for partner visa refusal – prospect of complying with visa conditions imposed – no work requirement – large mortgage obligations – reporting requirement – immigration history – overstayed student visa – abscond from immigration detention – remained unlawfully in the community – no criminal conduct requirement – theft and cannabis related charges – disregard for Australian laws and authorities – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.223

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 on 21 March 2019 to refuse to grant the visa applicant a Bridging E (Class WE) Subclass 050 visa under s.65 of the Migration Act 1958 (the Act).

2. The [applicant] applied for the visa on 18 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 1994 (the Regulations). Relevant to this matter, the primary criteria include cl.050.223.

3. On 21 March 2019, a delegate of the Minister refused to grant the visa because the delegate was not satisfied that the applicant met conditions 8101 (No Work), 8401 (Report As Directed), 8506 (Notify Change of Address), 8564 (must not Engage in Criminal Conduct) and cl.050.223 of Schedule 2 to the Regulations.

4.    The decision to refuse to grant the visa and the decision relating to requiring a security was made on the basis as to whether, at the time of application, the applicant has made, or would have made, a valid application for a substantive visa that can be granted in Australia. The applicant appeared before the Tribunal on 1 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

6.    The Tribunal has taken into consideration all the evidence in the Department of Immigration’s case file and the Tribunal’s case file and evidence given at the Tribunal hearing.

ISSUE

7. The issue in this matter is whether the applicant will abide by visa conditions and meet cl.050.223 of Schedule 2 to the Regulations.

Substantive visa application

8.    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.

9.    ‘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.

1. At the time of the Bridging E visa application the applicant has a valid ongoing application for a [Partner visa refusal]. The review application was lodged with the Tribunal [in] March 2017.

2. Accordingly, the applicant satisfies cl.050.212(3) and satisfies the time of application criteria in cl.050.212.

Whether the applicant will abide by conditions cl.050.223

1. 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.

2. 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].

Will the applicant abide by conditions if the bridging visa is granted?

1. The Tribunal has to be satisfied at the time of decision, that should a Bridging E visa be granted to [the applicant], he will abide by any conditions imposed on it. The Tribunal has assessed whether [the applicant] meets the requirements as outlined in cl.050.223 of the Regulations (Abide by Conditions) and the Tribunal is satisfied, as was the delegate, that the visa conditions that should be imposed on the applicant for the grant of a Bridging E visa would include:

• 8101 The holder must not engage in work in Australia.

• 8401 The holder must report as directed (a) at a time or times; and (b) at a place; specified by the Minister for the purpose.

• 8506 The holder must notify the Department of any change of address; and

• 8564 The holder must not engage in criminal conduct.

CLAIMS AND FINDINGS

1. In considering whether the applicant will abide by the conditions imposed on the visa, the Tribunal considered the applicants immigration history, his responses provided to the Australian Border Force detaining officers on 7 March 2019, and documents provided in support of this application and the interview conducted by the Delegate on 20 March 2019.

2. In requesting a grant of the visa, both prior to and at the Tribunal hearing, the applicant provided the following information.

3. The applicant first arrived in Australia [in] November 2009 as the holder of a student [visa]. This visa was valid until 30 September 2013. During the Bridging E visa interview conducted on 20 March 2019, the applicant stated that he did not complete all of his studies and ceased studying at the end of 2012. Departmental records show the applicant ceased studying on 25 May 2012. The applicant became an unlawful non-citizen 1 October 2013. The applicant gave evidence at the review hearing that he stopped studying because his mother became ill and could not afford to support his studies. The Tribunal accepts the applicant’s mother may have stopped supporting him financially but he had a personal responsibility to ensure that he remained lawfully in Australia. 

4. The applicant did not apply for any further visas nor did he make any attempts to approach and rectify his immigration status with the Department. The applicant continued to reside in Australia as an unlawful non-citizen without holding any visas in the community. During this period he stated that he was working in a [business] and sometimes worked as a [Occupation 1]. He further stated that he did not know how or who he had to contact to rectify the situation. The Tribunal does not accept the applicants explanation as being credible and is of the view the onus is upon the applicant to ensure that he is aware of his migration status at all times to remain lawfully In Australia.

5. On 05 December 2014 the applicant was located by Victoria Police due to a search warrant where they attended his home at [Suburb 1], Victoria, and he was arrested on theft and cannabis related offences.

6. Upon being released on summons, he was then detained under s189 of the Act and transferred to [an] Immigration Detention Centre. The applicant stated that at the time he wanted to return back to Vietnam but his [wife] (girlfriend at the time), wanted him to remain in Australia and had threatened to kill herself if he left.

7. On 10 December 2014 the applicant applied for a Protection (subclass XA 866) visa which was refused on 18 February 2015. He sought appeal of this decision, which was affirmed on 5 May 2015 by the Administration Appeals Tribunal.

8. On 10 March 2015 the applicant successfully absconded from [the] Immigration Detention Centre. This action under s.197A of the Act is punishable by imprisonment for up to five years.

9. On 25 November 2015 the applicant then lodged a Combined Partner [visa] and on 28 November 2016 he was granted an associated Bridging C [visa]. On 16 January 2017 the associated Bridging C visa was cancelled under s.116(1)(f) of the Act. On 8 June 2017 the applicant’s Combined Partner [visa] was refused. On 20 March 2017 he lodged a merits review of his [Partner visa] and the matter remains ongoing.

10. From the time the applicant absconded from detention on 10 March 2015, he remained in the community as an unlawful non-citizen until he was granted a Bridging C visa for a short period of time. On 07 March 2019 the applicant presented to the Department and sought a Bridging E (Class WE) Subclass 050 visa, however this was refused. The applicant was immediately detained under s.189(1) of the Act and accommodated at [another immigration detention centre]. The applicant told the Tribunal that he escaped detention to look after his wife and child.

11. On 20 March 2019 the applicant was interviewed by the Department in relation to his Bridging E visa application. The applicant stated that he presented to the Department on 07 March 2019 because he did not want to hide anymore, and wanted to do the right thing, especially since becoming a father. The applicant has a daughter aged [age] years old. He claims he wants to do the right thing and this is why he approached the Department. He further stated at interview that he wants to live in Australia with his wife and child. He also stated that he has have lived in Australia for 10 years and has made Australia home with his wife and child. The applicant also claimed that he does do not engage in drugs anymore. The applicant informed the Tribunal that he is a changed man as of the result of having a child and wanted to stabilise his life.

Condition 8101 No Work The holder must not engage in work in Australia

1. The applicant at the Tribunal hearing stated that he hasn’t worked since absconding from [the] Immigration Detention Centre in 2015. He further stated that he did nothing apart from going fishing or just stayed at home looking after his daughter. The applicant gave evidence that his wife is the sole income provider and receives Centrelink benefits.

2. The applicant told the Tribunal that his wife’s mother gave them a deposit for a home and they currently have a large mortgage of approximately $480,000. The applicant further stated that he will move into the house in [Suburb 2] with his wife and child. When queried by the Tribunal as to how he would manage the mortgage payments, he replied that his mother-in-law helps out and that he will lease other rooms out to help with the mortgage. The applicant’s wife gave evidence that she currently receives a partnered parental payment from Centrelink and the mortgage for the property they will live in is approximately the same amount as her payments. The applicant’s wife gave evidence that her mother supported the couple initially with the deposit for the home and the last time she received financial support from her mother was in September 2018. The applicant said that his wife and child are currently living at the property on their own. The applicant’s wife told the Tribunal that she and her child are having psychological problems and need to be together as a family unit with the applicant. The applicant’s representative submitted that it is important for a young child to be with both their parents. The Tribunal accepts that there would be a reasonable degree of uncertainty and grief when families are separated for lengthy periods of time. The Tribunal places some weight on the impact this would have on the applicant and his family.

3. Overall, the Tribunal places little weight on the evidence provided by the applicant and witness, as he owes a considerable amount of money to a financial institution and there is a strong degree of uncertainty in relation to renting rooms out in the future to help with the mortgage. The Tribunal has reasonable doubt that the applicant has the ability to continue to service the loan repayments without additional income and therefore the Tribunal is not satisfied that the applicant will abide by the condition 8101, no work.

Condition 8401 The holder must report at a time or times and at a place specified by the Minister for the purpose; 8506 The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address

1. The Tribunal is not satisfied that the applicant would abide by visa conditions 8401 and 8506. This is based on his immigration history as outlined above. The applicant knowingly overstayed his student visa between October 2013 and December 2014 when he first came to Australia. It was only due to a search warrant that he was located by Victorian Police and detained. At no time during this period did he present to an Immigration Office to rectify his status. Had the applicant not come to the attention of the Department and subsequently been detained, the Tribunal has little doubt that he would have continued to remain unlawfully in the community. The Tribunal is of the view the applicant would not report at a time or times and a place specified by the Minister for the purpose. Furthermore, the applicant chose to abscond from detention and once again remained unlawfully in the community. While the Tribunal gives some weight to the fact that after a number of years the applicant finally presented to the Department, It gives more weight to his non-compliance with living unlawfully in the Australian community for a number of years.

Condition 8564 Not engage in criminal conduct

1. In 2015 after being detained at [the] Immigration Detention Centre the applicant planned, and successfully absconded from immigration detention. It is a criminal offence to escape from a lawful Immigration detention centre. Under section s.197 of the Act a detainee must not escape from immigration detention as it is a punishable offence. A detainee may face up to five years of imprisonment. The applicant stated that his current criminal charges have been adjourned until April 2019. The Tribunal is of the view the applicant’s history of non-compliance with immigration regulations and visa conditions are an unacceptable risk to the community and immigration program. Furthermore, there are outstanding warrants and charges relating to Cultivate Narcotic Plant Cannabis, Possess Cannabis, Traffic Cannabis and Theft. The applicant provided that he is a changed man due to the birth of his child and now wants to stabilise his life with his wife and child and that he has not had any criminal issues since 2015. The Tribunal accepts that he has not been charged with any criminal offences since 2015. However, the Tribunal is not satisfied that he will comply with this condition.

2. Based on the evidence before it, the Tribunal is of the view that the applicant has a demonstrated that he has a disregard for the integrity of the immigration program and Australian laws and authorities. Given the applicant’s history of non-compliance the Tribunal cannot be satisfied that he will comply with the conditions imposed on his Bridging E visa. The Tribunal is of the view if the applicant was released from detention on a Bridging E (Class WE) (Subclass 050) visa he would fail to keep in contact with the Department.

3. The Tribunal considered whether the payment of a security would assist it to be satisfied that the applicant would abide by the conditions on the visa if granted. The applicant provided evidence that his family are in a position to put forward a security bond of $30,000 in support of his visa application to ensure his compliance with any conditions that would be imposed on the visa if granted. For the reasons set out above, the Tribunal is not satisfied that any (or perhaps any reasonable) amount of security would act as an incentive for him to abide with the Bridging E visa conditions. The Tribunal finds, therefore, that the applicant does not meet cl.050.223 of Schedule 2 to the Regulations.

4. 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.

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

6. 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

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

Russell Matheson
Member