1911383 (Migration)

[2019] AATA 3144

1911383 (Migration) [2019] AATA 3144 (16 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1911383

MEMBER:David Barker

DATE:16 May 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 16 May 2019 at 10:45am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – comply with visa conditions imposed – no work requirement – ability to meet essential living expenses – access to financial support – knowingly breach work limitations in the past – reporting and notification requirements – strong motivation to remain in Australia – no criminal conduct requirement – blatant disregard for traffic regulations – failed to appear at Court – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.221, 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 sections 378 and 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 2 May 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). Relevantly to this matter, the primary criteria include cl.050.223.

3. The decision to refuse to grant the visa was made on 6 May 2019, on the basis that the delegate was not satisfied that if the visa was granted, the applicant would comply with the conditions imposed on the visa. The applicant was due to appear before the Tribunal on 14 May 2019 by video from Melbourne to give evidence and present arguments. He did not appear at the specified time and place and when contacted by the Tribunal the [immigration detention centre] indicated the applicant was unwilling to be transported to the location of hearing. In response to this the Tribunal offered the applicant the option of participating in a hearing on 15 May 2019 by telephone and he took up this opportunity.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicant will abide by the conditions on the visa (cl.050.223). 

   The applicant’s visa history

6. The following information about the applicant’s immigration history is taken from the delegate’s decision record, which was provided to the Tribunal by the applicant, from the applicant’s evidence and from other material before the Tribunal.

7. The applicant is a national of Pakistan.  He is [age] years old.  The applicant has a long immigration history as detailed in the delegate’s decision as follows:

   • 7 September 2010 - granted [Student visa];
   • [September] 2010 - arrived in Australia;
   • 2 December 2012 - [Student visa] ceased;
   • 3 December 2012 - became an unlawful non-citizen (UNC);
   • 31 December 2012 - granted [Bridging visa];
   • 31 December 2012 - lodged application for [Student visa] - granted [Bridging visa];
   • 10 January 2013 - application for [Student visa] refused;
   • 30 April 2013 - applied to Migration Review Tribunal for review of the [Student visa] refusal decision;
   • 11 December 2013 - Migration Review Tribunal affirmed the [Student visa] refusal decision ;
   • 17 January 2014 - associated [Bridging visa] ceased;
   • 18 January 2014 - became UNC;
   • 3  December 2018 - detained under s.189(1) of the Act by Victoria Police; 
   • 17 December 2018 - lodged application for a [Protection visa];
   • 20 December 2018 – [Bridging E visa] refused;
   • 10 January 2019 - application for [Protection visa] refused;
   • 14 January 2019 -  applied to Administrative Appeals Tribunal (AAT) for review of the [Protection visa] decision;
   • 1 February 2019 – [Bridging E visa] refused;
   • [March]  2019 - AAT affirmed the [Protection visa] refusal decision;
   • 1 April 2019 - lodged application for judicial review (Federal Circuit Court) of the [Protection visa] refusal decision;
   • 2 May 2019 - lodged application for a [Bridging E visa];
   • 6 May 2019 – [Bridging E visa] refused.

8. In his application for the Bridging E visa, lodged on 2 May 2019, the applicant provided a support letter from [Ms A], dated 1 May 2019, which he considered relevant to his application.  The support letter stated [Ms A] has known the applicant since he arrived in Australia and had been his driving instructor.  She stated that the applicant is well-known to her and that he highly respects her and that she cares for him.  [Ms A] stated that the applicant had lived in her leased property, along with a couple of international students and that she would provide him accommodation and meals until he gets his work rights.

9. In the decision record of the delegate, a copy of which was provided with the review application, the delegate noted that in an interview on 2 May 2019, the applicant provided the following information:

   ·He had not had contact with the Department since becoming an unlawful non-citizen in January 2014 until he attended [a] Police Station in Victoria on 3 December 2018.

   ·He told a police officer at [the] Police Station that he was addicted to drugs and wished to change his life.

   ·He had not achieved any education qualification whilst he has been in Australia and ceased study of [a specified] course after six months because he did not like the course.

   ·Whilst he was on a student visa he had worked for most of the time for 80 hours per fortnight.

   ·He had been charged in relation to an accident in Australia.

   ·He has outstanding traffic fines amounting to $83,000.

   ·He has made a mistake and promised that he would not do it again.

10. The delegate noted that the applicant applied for the current Bridging visa without any assistance and had in the past made multiple visa applications. On that basis, the delegate considered this to demonstrate the applicant has an understanding of both his immigration history and of immigration procedures in Australia, but notwithstanding this, had at no stage initiated contact with the Department to regularise his visa status.  The delegate also noted that Departmental records indicate the applicant was charged and convicted with failing to give his name and address and property damage and that the Magistrates Court of Victoria ordered he be suspended from driving for a period of one month and fined $700.

11. On the basis of the information available to the delegate they were not satisfied the applicant would comply with conditions that would likely be attached to a Bridging visa, including:

    8101     The holder must not engage in work in Australia.

    8401The holder must report:

    (a)at a time or times; and

    (b)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.

    8564The holder must not engage in criminal conduct.

12. It is the Department’s decision, on 6 May 2019, to refuse an application for a Bridging visa lodged on 2 May 2019, which is the subject of the current review before the Tribunal.

    The Tribunal hearing

13. At the Tribunal hearing, the Tribunal explained that it has to consider the issue regarding the ‘time of application’ criteria. In response to a question from the Tribunal, the applicant confirmed that he has applied for a judicial review of the decision to refuse his Protection visa application and that he has been advised of no decision in relation to this application.

14. The applicant gave evidence he arrived in Australia in September 2010 on a Student visa but that he did not subsequently complete any courses.  He acknowledged telling the delegate that he withdrew from [a specified] course after six months’ study because he did not like the course.  In his oral evidence to the Tribunal the applicant gave a different explanation for not maintaining study in any course in which he enrolled whilst on a Student visa between September 2010 and December 2012. During the hearing he said he did not complete any courses because he was under pressure from his father to remit as much money as possible back to the family in Pakistan and that this resulted in him prioritising work over study.  He gave evidence that he worked as a [Occupation 1] at night during the period he was on a Student visa and would be fatigued when he attended courses during the daytime.  He said that he tried his best to meet his father’s expectations for three or four years and then had increasing difficulties.  He said that was why he came forward to the Victorian Police and immigration authorities in December 2018.

15. The applicant told the Tribunal he came to Australia when he was quite young, only [age] years of age, and that it was always his father’s intention he earn as much money as he could in Australia and remit those earnings back to the family.  He said he was unable to resist his father’s influence.  He said that he worked as a [Occupation 2] from 2012 to 2015 and during that period incurred $83,000 in traffic fines as a result of not paying toll fees on Victorian roads.

16. When asked how he had supported himself since 2015, the applicant denied working in paid employment.  He said he met his expenses through the generosity of friends and some funds sent to him by his family from Pakistan.  He described himself as a man of modest needs.  He acknowledged that he developed drug dependency issues over a two-year period leading up to his presenting to the Victorian police in December 2018, but denied having to pay for any of the drugs he consumed.  He said the drugs were supplied to him by friends.

17. As to the concern he may not comply with conditions that would be attached to a Bridging visa, the applicant conceded that he had not complied with some things in the past, such as working in Australia without work rights and overstaying the visa he was initially granted. He said that was in the past and that he will now comply with any conditions that may be attached to a Bridging visa.  He said he has now been in Australia for a long time and has suffered because of his lifestyle choices.  He said he has done bad things in the past and that this motivated him to approach the police and immigration authorities because he wants to change his ways and do the right thing.  The applicant said that his goal is to have a good life in Australia.  When asked about what sort of bad things he had done in the past, the applicant reiterated that he had worked without permission and overstayed his visa.

18. In response to a question as to how he would financially support himself if he was released into the community, the applicant gave oral evidence that he would be fully supported by the Turkish woman who previously provided him with somewhere to live. He confirmed this was the person who provided him with a support letter, [Ms A]. He said she would provide him with a room, meals and pocket money.

19. In response to the Tribunal noting a ‘no work’ condition would be a condition on any Bridging visa the applicant could be granted and that the support letter from [Ms A] qualified her offer of support by stating she ‘will provide him with accommodation and meals until he gets his work rights’, the applicant explained that he has now applied for a number of Bridging visas since he was detained in December 2018.  He said that he initially maintained he needed permission to work, to support himself and also to pay instalments on his outstanding traffic fines.  He said that he will pursue his wish to remain in Australia through every legal avenue that is available to him and that [Ms A]’s support offer extends, if need be, until he has gone through all those appeal opportunities and either is granted residency and work rights in Australia, or is required to depart. 

20. The applicant confirmed his wish to not return to Pakistan. As to the concern he would again become an unlawful citizen in Australia in the event the judicial review did not result in him being granted a Protection visa, the applicant said he has already lived that life as an unlawful non-citizen but that now he wants a straight life, a normal life.  He said he acknowledges his past mistakes and would not make them again if given the chance to remain in Australia.

21. In response to a question from the Tribunal as to where he would live if he were to be released into the community, the applicant said he would live in a room at a property owned by [Ms A] in [Suburb 1], Victoria.  He said he stayed in a residence owned by [Ms A] previously, before moving out with a friend, who had encouraged him to take drugs. He said [Ms A] offered to support him again after he got in touch with her and explained he was in detention and had been free of drugs for some months.

22. In relation to the outstanding traffic fines discussed in the delegate’s decision, the applicant confirmed these amounted to $83,000.  He said he contacted the Sherriff’s office in Victoria after receiving a notice he may have to go to Court in relation to this debt and indicated he told them he could repay by instalments once he was granted work rights in Australia.  He said he understands now that a condition on a Bridging visa may mean he cannot get work rights.

23. The Tribunal put to the applicant that his accumulation of $83,000 of traffic fines, as a consequence of not paying toll fees, displays a disregard for the law and legal consequences flowing from this disregard, which in turn raises concern as to whether he would abide by conditions attached to a Bridging visa.  In response, the applicant conceded he did not pay required toll fees and that was why he kept asking to be given work rights so that he could start to paying the debt he has accumulated. He said he would be very careful if he was to be released into the general community on a Bridging visa.  He promised he would not display this sort of behaviour again. 

24. In relation to Court matters, the applicant said he was involved in a motor vehicle accident whilst working at night as a [Occupation 2] in 2015 and that he refused to provide the driver of the other car his details, as that person would not provide his details.  He said he was due to go to Court in relation to that matter around the date of his hearing before the Migration Review Tribunal; he did not attend Court and then avoided doing so for some years until a Police officer told him he had to go to Court, which he eventually did in October 2018.  He said that as a result of that Court appearance he was suspended from driving for a month and fined some money.  The applicant emphasised that he has not being charged or convicted of a criminal offence whilst he has been in Australia, only these traffic matters.

    Assessment of the evidence

25. At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2) to (9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.

26. Having regard to all the evidence before it, the Tribunal finds the applicant was granted a [Student visa] on 7 September 2010. That visa ceased on 2 December 2012 and his application for a further Student visa was unsuccessful, with that decision being affirmed by the Migration Review Tribunal on 11 December 2013.  The Bridging Visa associated with that application ceased on 17 January 2014.  The Tribunal finds that the applicant became an unlawful non-citizen on 18 January 2014. The Tribunal finds that on 3 December 2018, the applicant was detained by the Department pursuant to s.189 of the Act, at Broadmeadows Police Station in Victoria.  Subsequently the applicant was transferred to MITAC, where he is currently located. The Tribunal finds the applicant unsuccessfully applied for a [Protection visa] on 17 December 2018, with that decision being affirmed by the Tribunal (differently constituted) on 1 March 2019.  On 1 April 2019 the applicant applied for a judicial review of the decision to refuse his application for the Protection visa.

27. The Tribunal accepts that the applicant meets cl.050.212(3A), because the applicant has applied for judicial review of a decision to refuse to grant him a Protection visa and the judicial proceedings (including any proceedings on appeal) have not been completed. He therefore meets one of the time of application criteria in cl.050.212 and so the Tribunal must consider whether the applicant will abide by conditions imposed on a bridging visa if one is granted.

    Whether the applicant will abide by conditions - cl.050.223

28. Clause 050.223 requires that the Tribunal be 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.

29. 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].

30. 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.

31. In this case, cl.050.612A applies because the applicant has applied for a judicial review of the decision to refuse his application for a Protection visa. This clause prescribes 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     The holder must not engage in work in Australia.

    8401The holder must report:

    (a)at a time or times; and

    (b)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

    8564The holder must not engage in criminal conduct.

    Condition 8101 - no work

32. The Tribunal has concern regarding the reliability of the applicant’s claims in relation to his ability to meet his essential living expenses without seeking paid employment, if he was to be released into the community.  This is because the Tribunal is not persuaded he has access to the amount of financial support he would require, even to meet modest needs.

33. The applicant claims he would be fully supported by [Ms A] and in support of this claim relies on a support letter from her. The support letter provides only a qualified offer of support, to provide accommodation and meals, until such time as the applicant gains work rights. The Tribunal is not persuaded this offer also includes ‘pocket money’, as claimed by the applicant.  The Tribunal is not persuaded the applicant would have access to sufficient funds to pay for other costs, such as transport, a phone or clothing in the event he was released into the community on a Bridging visa, let alone costs associated with the judicial review he has requested or on making any required payments to his $83,000 debt for unpaid toll fees.

1. In his interview with the delegate the applicant conceded he worked up to 80 hours per fortnight whilst on a Student visa and he concedes he continued to work as an unlawful non-citizen knowing he lacked work rights to do so.  He claims he accrued $83,000 in unpaid toll fees whilst working as a taxi driver between 2012 and 2015.  Taken at face value, this would appear to reflect working many hours per week to accrue this level of debt as a result of the use of toll roads. The Tribunal was, however, not persuaded by the applicant’s claim he ceased paid employment in the 2015 to 2018 period.  He claims he received financial support from his family in Pakistan, however, he has also stated that his difficulties with pressure from his father to remit his employment earnings were unrelenting until such time as he came forward to the Police and immigration authorities in December 2018. The Tribunal is not satisfied the evidence demonstrates that the applicant would have access to any financial support from relatives in the event he was released into the community on a Bridging visa.

2. The applicant claims he was financially supported by a good friend for a period after he moved from accommodation owned by [Ms A], but conceded this friend returned to Pakistan some time ago. The Tribunal is unconvinced he would have access to friends who he said he then shared accommodation with, or his related claim he did not have to pay for this accommodation, or for food and drugs he consumed whilst living with those friends.

3. The Tribunal is not satisfied the applicant has provided a convincing explanation for the inherent inconsistency in his statement that he would have no need to work but has seen a need to repeatedly pursue work rights over recent months due to his wish to avoid possible consequences of not starting to repay the very considerable debt he owes the Victorian authorities for unpaid toll fees.  The Tribunal finds the applicant has knowingly worked during periods he lacked work rights when he perceived this necessary to his circumstances and is not persuaded he would not do so again.

4. After considering the cumulative evidence about this issue, and for the reasons outlined above, The Tribunal is not satisfied the applicant would not seek paid employment to meet his essential expenses or otherwise supplement his financial situation if he deemed this necessary or to his advantage.  The Tribunal is not satisfied that the applicant will abide by condition 8101 (No Work) if a Bridging visa is granted to him.

   Condition 8401 - report as directed

5. The Tribunal is concerned that the applicant has a strong motivation to remain in Australia and that he has expressed an unwillingness to depart from Australia.  The Tribunal acknowledges the applicant's oral evidence during the hearing that he will depart from Australia if his application is refused, once he has exhausted all possible appeal options available to him. The Tribunal did not, however, find this claim convincing.  In forming this view the Tribunal placed weight upon the applicant’s expressed wish to remain in Australia as he can have a good life here.  In conjunction with his expressed wish to not return to Pakistan, the Tribunal has concerns whether the applicant will remain engaged with the Department if his judicial review is unsuccessful. Therefore, I am not satisfied that the applicant will abide by visa condition 8401.

   8506 - notify Immigration at least two working days in advance of any change in the holder’s address

6. The Tribunal notes that the applicant has not resided with the person offering to provide him with accommodation support for some time.  It is also apparent [Ms A] does not herself reside at this address and is not in a position to necessarily support the applicant to meet the requirement he notify the Department if he intended to move from this location. For the reasons discussed elsewhere in this decision pertaining to his unwillingness to depart from Australia, the Tribunal has concerns the applicant may seek to disappear into the general community if the judicial review does not result in his gaining residency in Australia, and as a consequence, not notify the Department in advance of a change of his residential address.  Therefore, I am not satisfied that the applicant will abide by visa condition 8506.

   8564 - the holder must not engage in criminal conduct

7. The Tribunal is concerned the applicant’s history of traffic offences and unpaid toll fees displays a blatant disregard for traffic regulations. The Tribunal accepts the applicant has no convictions for serious criminal matters such as theft or assault. The applicant has, however, conceded he failed to appear at Court when required to do so in relation to traffic offences beyond those that may arise from the unpaid toll fees and that this is of concern to the Tribunal.  Notwithstanding these concerns, the Tribunal is not convinced there is an established reason for finding the applicant would not abide by visa condition 8564.

   Overall assessment of whether the applicant will comply with conditions

8. In order to make a favourable decision the Tribunal must be positively satisfied that, if a Bridging visa is granted to the applicant, he will abide by the conditions imposed on it. I acknowledge the applicant came forward to the Victorian police and immigration authorities of his own volition in December 2018 and disclosed his unlawful visa status.   However, in the final analysis I am not persuaded that the applicant’s wish to regularise his visa status after a considerable period as an unlawful non-citizen in Australia demonstrates that the applicant will comply with conditions 8101, 8401 and 8506. Therefore, the applicant does not meet cl.050.223.

9. 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 of the Regulations.

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

11. 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

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

    David Barker
    Member