1907373 (Migration)

[2019] AATA 1381

1907373 (Migration) [2019] AATA 1381 (5 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1907373

MEMBER:Nora Lamont

DATE:5 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

·cl.050. 212 (6) of Schedule 2 to the Regulations; and

·cl.050. 223 of Schedule 2 to the Regulations.

The Tribunal also directs the primary decision maker to indicate to the applicant that conditions 8101, 8401, 8506 and 8207 will be imposed if visa is granted.

Statement made on 05 April 2019 at 9:53am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – made a request for Ministerial Intervention under s 417 – concerns about applicant’s migration history – received poor migration advice – little English skills – genuine relationship with an Australian permanent resident – prospect of complying with visa conditions imposed – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 73, 417
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 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 21 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).

3. The decision to refuse to grant the visa was made on 26 March 2019. The applicant appeared before the Tribunal on 4 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence [from a witness]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 the criterion at the time of the decision: cl 050.221.

7. In this case the applicant is seeking to meet cl. 050. 212(6). The applicant does not claim to meet any of the alternative criteria in cl. 050.212. For the reasons below, the applicant meets cl.050.212.

   Ministerial Intervention 050.212 (6)

8. Subclause 050.212(6):

   (6)  An applicant meets the requirements of this subclause if:

   (a)  the applicant is the subject of:

   (i)  a decision in relation to an application made in Australia for a visa; or

   (ii)  a decision to cancel a visa; and

   (b)  in relation to the decision mentioned in paragraph (a), the applicant:

   (i)  is the subject of a decision for which the Minister has the power to substitute a more favourable decision under section 345, 351 or 417 of the Act; and

   (ii)  has made a request to the Minister to substitute a more favourable decision under section 345, 351 or 417 of the Act; and

   (c)  the applicant has not previously sought, or been the subject of a request by another person for:

   (i)the exercise of the Minister's power under section 345, 351 or 417 of the Act;  or               

   (ii)  (ii)  a determination under section 48B of the Act.

9. The Tribunal is satisfied that the applicant meets the criteria in Subclause 050.212(6) in Schedule 2 of the Migration Regulations as the applicant has made a request to the Minister to intervene under Section 417 of the Migration Act. This is the applicant’s first Ministerial Intervention request.

   Tribunal Hearing

10. The applicant first arrived in Australia [in] November 2013 as the holder of a [temporary visa]. However the applicant disappeared and did not leave the country as scheduled. On 2 February 2014 the applicant applied for a Protection visa. The applicant’s visa was refused by the Department, affirmed by the AAT and was dismissed at the Federal Circuit Court [in] May 2016. The applicant’s bridging visa ceased on 31 May 2016 and the applicant remained unlawful until she was located by Victorian Police [in] February 2019.

11. The applicant said that when she arrived in Australia her family told her not to come back to China. This issue is related to her claims for protection and the Tribunal did not delve into the details of this. After that a friend of hers in China gave her contact details for a man in Perth who could help her with somewhere to stay.

12. The applicant came to know her current partner (defacto) one day when she was in a shopping centre and was struggling with payment and the language barrier and he was behind her in the line and helped her. After that they got to know each other and have been together since that time in 2014.  The applicant’s partner is a permanent resident of Australia. They lived in several locations in Western Australia before moving to Melbourne in January of 2018. When asked why they moved the applicants partner said there was more opportunity for work in Melbourne.

13. The applicant explained that she had a migration agent who had put in her application for judicial review and that he told her that her bridging visa was valid until May of 2019. She said that she had recently tried to get a hold of him but was unable to get him to respond. When they arrived in Melbourne they lived in hotels until they got a house to [rent]. The applicant’s partner said that the rent was high so they rented the top floor to a Chinese woman. The applicant said they did not associate with this woman at all she was merely a renter. The woman renting the upstairs was the subject of a police [raid]. The applicant was not associated with any of the issues with the renter but was picked up by border patrol as she was found to be unlawful. The applicant’s partner said that the applicant and he have been cleared and they are not in any trouble with the law at this time. When asked what happened to the renter the applicant said she did not know. She said she only heard no one can find her.

14. The applicant’s partner explained that due to the age difference between the [couple] his parents made him go back to [Country 1] for a few months. They were unhappy about the relationship. He said he became depressed and missed his partner and returned to her. He suffers from anxiety and depression and provided the Tribunal with documents related to his depression. He works managing three [workplaces] mainly in the Western Suburbs and he said that his father gives him money which explains the movement of larger sums in his bank account that the delegate was concerned about. He said his father would give him money at least once a month and it ranged from $3000 to $5000. He said he didn’t make that much at his job which is why he had a renter to help pay the costs.

15. Earlier this year the applicant paid a migration agent $14,000 to get a partner visa which she was not qualified for that was never lodged. The applicant has been scammed two times due to her poor English language skills and general lack of understanding of migration law and consequences. While the Tribunal has concerns about the applicant’s migration history and non-compliance with her visa conditions the Tribunal accepts that the applicant was given dodgy advice, was not skilled enough to realise what was going on and has little English skills.

16. Further, the Tribunal found the applicant’s relationship with her partner to be genuine and enduring having been together for five years. They genuinely seemed to love and care for each other and want to be together. When asked if the Ministerial Intervention was unsuccessful what they planned on doing the applicant’s partner said he would go with her back to China until they could sort out their visa issues. The applicant said they would be getting married and the Tribunal finds their relationship to be genuine and considers that the applicant’s partner is willing to move to China to be with her, and that he is doing what he can to get her out of detention this in itself is compelling.

17. The applicant has never been charged with a crime and does not have a record. The delegate found that the applicant had no intention of leaving Australia. It was clear to the Tribunal that the applicant indeed wants to stay in Australia with her partner. She has put in for a Ministerial Intervention on compassionate grounds and is awaiting the outcome of that process. The applicant and her partner are both aware that should the intervention not be considered the applicant will need to depart Australia.

    Whether the applicant will abide by 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. Division 050.6 also sets out conditions to which the visa is subject.

19. 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].

20. 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.

21. Given the history of non-compliance the Tribunal finds the applicant will need to have conditions imposed on her upon release from detention. At the Tribunal hearing these conditions were discussed with the applicant and her partner. The applicant barely speaks English so the Tribunal does not consider she would actively look for work or study however, it is a condition that she not work or study. Further, in order for the applicant to comply with the Department she is to have condition 8401 imposed so that she continues to report to the Department and condition 8506 so that the applicant’s whereabouts can be established at all times.

22. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    ·8101 No Work

    ·8401 Report as Directed-the holder must report at the time or times; and at a place specified by the Minister for the purpose

    ·8506 Advise change of address –the holder must notify the Department at least 2 working days in advance of any change in the holder’s address

    ·8207 No study

23. On the evidence before it, and given the assurances of the applicant and her partner that they will comply the Tribunal is satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant meets cl.050.223.

24. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

25. 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

26. The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

    cl.050. 212 (6) of Schedule 2 to the Regulations; and

    cl.050. 223 of Schedule 2 to the Regulations.

    The Tribunal also directs the primary decision maker to indicate to the applicant that conditions 8101, 8401, 8506 and 8207 will be imposed if visa is granted.

    Nora Lamont
    Member