1913161 (Migration)

[2019] AATA 2997

1913161 (Migration) [2019] AATA 2997 (4 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1913161

MEMBER:Linda Symons

DATE:4 June 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 04 June 2019 at 12:33pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – no work requirement – brother’s financial support – debts to pay in Australia and a child to support – reporting and notification requirements – incentives to remain in Australia outweigh incentives to depart if Protection visa not granted – sufficiency of security bond – traumatised by experience in immigration detention – no provision for compassionate and compelling reasons – length of immigration detention – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.223; 050.613A; Schedule 8, Conditions 8101, 8401, 8506

CASES
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Liu v MIAC [2008] FMCA 725

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 to the Department of Home Affairs (the Department) for the Bridging E (Class WE) visa on 10 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 (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 23 May 2019 on the basis that the delegate was not satisfied that the applicant would abide by the visa conditions if granted a visa. On 27 May 2019, he applied to the Tribunal for a review of that decision.

4. The applicant appeared before the Tribunal on 31 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from his brother, [Mr A].  

5. The applicant was represented in relation to the review by his registered migration agent, [Mr B], who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

7. The issue in this case is whether the applicant satisfies the requirements of cl.050.223.

   Whether the applicant will abide by conditions - cl.050.223

8. Clause 050.223 requires that the Tribunal is satisfied, at the time of decision, that if a Bridging visa is granted to the applicant, he 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.

9. 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].

10. 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.

11. If the Tribunal is satisfied that the applicant will only abide by the conditions if given a financial incentive to do so, it is necessary to consider the security decision made pursuant to s.269 of the Act: VAAN at [10]. Conversely, if not satisfied that an applicant would abide by the conditions attached to a Bridging visa even where there is a financial incentive to do so, the occasion for the imposition of a security does not arise: VAAN per Finklestein J at [21]-[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37].

12. In considering the security decision, the amount of security should be a sum that is designed to secure compliance with the relevant conditions, having regard to the conditions that must be complied with, and the particular circumstances of the person bound by the requirements, notably their financial position: VAAN at [27].

13. In this case, cl.050.613A applies because the applicant has applied for a Protection visa and is not in a class of persons specified by the Minister by instrument in writing for this paragraph. This clause prescribes that, in addition to mandatory condition 8101 (No work), certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    ·8401    Report as directed.

    ·8506    Notify change of address.

    ·8207    Not engage in any studies or training in Australia.

14. In considering whether the applicant will comply with the conditions imposed on the Bridging visa, the Tribunal has had regard to his personal circumstances, his financial circumstances, his immigration history, the evidence given by his brother, the submissions made by his migration agent and the supporting documentary evidence provided.

15. In considering whether the applicant will comply with mandatory condition 8101 (No work), the Tribunal discussed with him his personal circumstances and his financial circumstances. His evidence is that he came to Australia [in] July 2012 on a Student visa. He stated that he completed a [Qualification 1] and has been working as a [Occupation 1]. He stated that, prior to being incarcerated, he had two jobs; working full time at [Company 1] and on a part time casual basis at [Company 2]. He stated that, as a result of being charged with a criminal offence and taken into custody, he has lost both jobs and his card approving him to work with children.

16. The applicant’s evidence is that he met a woman in Australia, they formed a relationship and got married in July 2014. He stated that that woman is a permanent resident in Australia and sponsored him for a Partner visa. He stated that he was granted a Bridging visa in association with his application for a Partner visa. He stated that, whilst his application for a Partner visa was pending, another woman falsely accused him of a crime and he was charged by the Police and taken into custody. He stated that the Department then cancelled his Bridging visa. He stated that he was granted bail and thought he could go home but was then transported from the Remand Centre to [an immigration detention centre] where he has remained. He stated that he was given the paperwork in relation to the cancellation of his Bridging visa at the [immigration detention centre].

17. The applicant stated that his wife became upset about the charge against him and informed the Department that she was withdrawing her sponsorship for the Partner visa. He stated that he was not aware she had done this and the Department did not inform him of this. He stated that the Department refused his application for a Partner visa and he applied to the Tribunal for a review of that decision. He stated that his wife subsequently changed her mind but was given incorrect advice in relation to whether she could attend the Tribunal hearing. He stated that the Tribunal affirmed the Department’s decision. 

18. The applicant stated that there was a mis-trial in relation to the criminal charge against him because there was a problem with one of the jurors. He stated that a re-trial was ordered and he was found not guilty.

19. The applicant gave evidence that his mother used to live in Ghana and took care of his [age] year old [child] (from a previous relationship). He stated that he was financially supporting his mother and [child]. He stated that she was not in good health and asked to see him. He stated that he had made arrangements in relation to his Bridging visa so that he could return to Ghana and visit them. He stated that, before he could do so, he was charged and taken into custody. He stated that he used to contact his mother and [child] every day prior to be taken into custody. He stated that his mother was not told about the charge and him being in custody. He stated that she somehow found out about it. He stated that she passed away in April 2019.

20. The applicant stated that his uncle contacted him and informed him that the family are blaming him for his mother’s death. He stated that he is not welcome in his mother’s village and if he goes there his mother’s family will seek to take revenge on him for her death. He stated that his father is from a different village. He stated that his [child] is now being cared for by his mother. He stated that, besides his [child], he has step siblings, uncles and aunts in Ghana. He stated that his [sibling and step-siblings] live in Australia. He stated that his brother is an Australian citizen. He stated that he fears for his life if he returns to Ghana. He stated that he has applied for a Protection visa and has an interview with the Department on 3 June 2019.   

21. The applicant gave evidence that someone at the detention centre found out what he had been charged with and he was severely assaulted by a detainee. He stated that he suffered an injury to his [Body Part 1] and had to seek medical treatment from a doctor. He stated that the assault was reported and a search was conducted at the [immigration detention centre]. He stated that contraband like drugs and mobile telephones were found. He stated that the detainees blamed him for the search and he has been assaulted on four occasions since then. He stated that his experiences at the [immigration detention centre] have severely traumatised him. He stated that he wishes to get out of detention and rehabilitate himself. He stated that he has never broken the law in Australia and has no intention of breaching the conditions of the Bridging visa if granted one.

22. The Tribunal asked the applicant about his current financial circumstances. He stated that, if it is a condition of his Bridging visa that he cannot work, he will not work. He stated that his brother is willing and able to support him financially and provide him with accommodation. He stated that when he first came to Australia he lived with his brother and family. He stated that he has savings of approximately $4,000.00. He stated that he also owns furniture and household contents and a car. He stated that he also owns a car, stationary and other items that he wants to sell in Ghana. He stated that he has a credit card debt of approximately $5,600.00 and two outstanding utility bills for electricity and the telephone. He stated that he told the bank that he is not working and cannot pay his credit card. He stated that he owns blocks of land in Ghana and has no debts in Ghana.

23. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 23 May 2019 which indicates that during an interview with an officer of the Department on 9 April 2019 he stated that he wished to be released from detention so that he could export items he had bought online to Ghana. The Tribunal raised this as an issue with him and noted its concerns that if he is granted a Bridging visa he would do this work in breach of a condition of the Bridging visa. He responded that he said based on the conditions at the time. He stated that if the conditions prohibit him from doing so, he would not. He stated that he told the officer that he will organise the property and that he needs to go to Ghana. He stated that the items are not bulky nor does his life depend on it. He stated that he will abide with the condition not to work.

24. The Tribunal raised as an issue with the applicant its concerns that he has debts to pay in Australia and a [child] to support and that these are strong incentives for him to work in breach of a condition of the Bridging visa. He responded that he informed the bank that he was not working and could not pay the credit card. He stated that since May or June 2018 it is not showing in his account and they have “taken it away”. He stated that he is planning to contact the bank and see if it “still holds”. He stated that he has spoken to his brother about the outstanding utility bills and his brother is prepared to help him pay them.

25. The Tribunal informed him that it had difficulty accepting that the bank would just wipe the credit card debt. He responded that that is what he was told. He stated that it is no longer part of his account. The Tribunal noted that if the debt is not wiped, interest would be accruing on the debt. He responded that he did not know. He stated that when he told the bank they said they would give him “austerity”. He stated that he told the bank that he was not working and had no means of paying the debt.

26. The applicant’s brother gave evidence that the applicant is his only “blood brother”. He stated that he invited him to come to Australia and study here. He stated that he is responsible for his brother. He stated that the last two years have been very difficult for him. He stated that his brother lived with him when he came to Australia. He stated that he then wanted his independence. He stated that he is prepared to provide him with accommodation, food, clothes and anything else he may need and is prepared to do so for as long as it takes. He stated that he is employed as a [Occupation 1] and works at [Company 3] on a full time basis. He stated that he also works part time at [Company 4]. He stated that his gross income is between $90,000.00 and $100,000.00 per annum. He stated that he owns a four bedroom house where he lives with his wife and [children], an investment property in Queensland and a car. He stated that he has two mortgages. He stated that his wife works part time in [Industry 1].  He stated that she is supportive of his brother living with them.

27. The applicant’s brother gave evidence that he is aware of the conditions that the Bridging visa would be subject to. He stated that he has experience monitoring parolees and will ensure the applicant complies with the conditions of a Bridging visa. He stated that he is prepared to be a guarantor and deposit a security bond. He stated that he is prepared to deposit a bond of between $2,000.00 and $5,000.00. He stated that he previously offered his house as security for the applicant’s bail and is prepared to do the same. He stated that he is aware of the consequences if the applicant does not comply with the conditions of the Bridging visa. He stated that the applicant is also aware of the consequences and he is confident that he will not breach the conditions of the Bridging visa.

28. The applicant has provided to the Department copies of a bank statement in relation to his brother’s joint bank account with [Bank 1] which shows a balance of   $60, 435.85 as at 11 April 2019 and a quarterly rates notice issued by the [local council] in relation to his brother’s home at [Suburb 1]. 

29. In considering whether the applicant will comply with the imposed conditions on the Bridging visa, the Tribunal has considered his immigration history in Australia, his pending application for a Protection visa, his incentives to remain in Australia and his incentives to return to Ghana. He has filed with the Tribunal a copy of the Department’s Decision Record dated 23 May 2019 which indicates that he arrived in Australia on 22 July 2012 as the holder of a Student visa that was valid until 15 September 2014. On 8 September 2014, he applied for a [Partner visa] and on 11 September 2014 was granted an associated Bridging visa. On 4 January 2017, his application for a Partner visa was refused by the Department. On 3 April 2017, he was granted another Bridging visa.

30. [In] November 2017, the applicant was charged with ‘sexual intercourse without consent’ and remanded in custody. On 2 February 2018, his Bridging visa was cancelled. On 6 February 2018, he was granted bail but was detained upon his release from the [remand facility] and transferred to the [immigration detention centre]. On 16 February 2018, he applied to the Tribunal for a review of the decision to cancel his Bridging visa. On 20 March 2018, the Tribunal affirmed the Department’s decision. [In] March 2019, he was found ‘not guilty’ on the charge of ‘sexual intercourse without consent’. On 7 April 2019, he applied for a Bridging visa on the basis of being an ‘applicant for a substantive visa’ and ‘Ministerial intervention’. On 10 April 2019, he withdrew that application. On 10 May 2019, he applied for a Protection visa. He has an interview with the Department on 3 June 2019 in relation to his application for a Protection visa.

31. The applicant’s evidence is that his mother’s relatives blame him for her death and will seek revenge on him if he returns to Ghana. He stated that his safety is not assured in Ghana and he fears for his life if he returns to Ghana. This is a strong incentive for him to remain in Australia if his application for a Protection visa is unsuccessful. His brother and family live in Australia. He also has [step siblings] who live in Australia and friends in Australia. These are also strong incentives for him to remain in Australia if his application for a Protection visa is unsuccessful. He has [qualifications] in Australia and work experience here. His ability to obtain employment and earn a higher income in Australia than he would in Ghana is a further incentive to remain in Australia if his application for a Protection visa is unsuccessful. He has a [child] in Ghana who he is supporting financially. His financial capacity to do so would be greater in Australia than it would be in Ghana and this provides another incentive to remain in Australia if his application for a Protection visa is unsuccessful.

32. The applicant has a [age] year old [child] in Ghana and this is also an incentive for him to return to Ghana. His [child] was living with his mother prior to her death and now lives with his own mother. The Tribunal notes that his mother’s presence in Ghana was a strong incentive for him to return to Ghana but since his mother’s death in April 2019 this incentive no longer applies. The Tribunal notes that he owns blocks of land in Ghana and this may be an incentive for him to return to Ghana. The incentives for him to remain in Australia if his application for a Protection visa is unsuccessful outweigh the incentives for him to return to Ghana.  

33. The applicant has provided to the Department a letter dated 14 May 2019 from [Pastor C] from [Church 1]. In his letter, [Pastor C] indicates that he met the applicant at the [immigration detention centre] on 6 February 2018 and that he has regularly attended the weekly Sunday services and Thursday morning services run by [Church 1]. He stated that in discussions with him he has informed him of his situation in Ghana and his fears about returning to Ghana. He stated that they support his application for a Protection visa.

34. The Tribunal has considered the submissions made by the applicant’s migration agent. The crux of his submissions was that the Tribunal should grant the applicant a Bridging visa for compassionate and compelling reasons. There is no provision in the legislation that allows the Tribunal to have regard to compelling and compassionate circumstances when determining an application for a Bridging visa.   

1. In view of the above, the Tribunal is of the view that the incentives for the applicant to remain in Australia if his application for a Protection visa is unsuccessful outweigh the incentives for him to return to Ghana. This raises concerns for the Tribunal that if his application for a Protection visa is unsuccessful he may disengage with the Department, disappear into the community and fail to comply with conditions 8401 and 8506 of the Bridging visa.   

2. The Tribunal raised this and its concerns in relation to the applicant’s immigration history with him. He responded that he would rather live in a place he does not like than keep looking over his shoulder. He stated that he would not have peace of mind doing that. He stated that he is not an adventurous person. He stated that there is no way he would disappear into the community. He stated that he cannot keep running forever. He stated that he knows that his life is at risk in Ghana and it is not safe but he has no intention of disregarding the laws of Australia. He stated that he has been law abiding and has no intention of doing otherwise. He stated that if his application for a Protection visa is unsuccessful he will seek legal advice and do what is best for him to do in relation to his safety.

3. The applicant stated that he has always been law abiding. He stated that for Australia to accommodate him has been a privilege. He stated that everything changed after the charges and he is traumatised. He stated that he knows what he went through when he did not do anything wrong and cannot imagine what it would be like if he was on the wrong side of the law. He stated that he is not ready to go through any such thing. He stated that he will observe every condition he is subject to and promised, on his honour, to do so.

4. Having considered all the evidence and the submission, the Tribunal accepts that the applicant has been assaulted at the [immigration detention centre], is traumatised by his experiences there and does not wish to remain in detention. The Tribunal accepts that his brother will provide him with food and accommodation and assist him financially if he is granted a Bridging visa. The Tribunal has considered the assurances given by him that he will comply with the conditions of the Bridging visa but is of the view that, despite those assurances, his expressed intentions will be overborne by the strong incentives for him to work in Australia and to remain in Australia if his application for a Protection visa is not granted.

5. The Tribunal accepts that the applicant’s brother genuinely wishes to support him and ensure that he complies with the conditions of a Bridging visa. His brother has offered to pay a security bond of between $2,000.00 and $5,000.00 and is prepared to offer his house as security.  The Department does not accept title deeds as security. The Tribunal is not convinced that a security bond of between $2,000.00 and $5,000.00 is sufficient incentive to ensure that he complies with the conditions of a Bridging visa. 

6. The Tribunal notes that the applicant was scheduled to attend an interview with the Department on 3 June 2019 in relation to his application for a Protection visa. As he is in detention, his application for a Protection visa will be given priority and determined quickly. He should therefore know the outcome of his application for a Protection visa fairly soon. If he is found to be in need of protection, he can expect to be granted a Protection visa subject to required security, health and other checks. If he is found not to be in need of protection, he will be expected to return to Ghana. In either case, his detention will not be prolonged unless he seeks to exercise his rights of review.  

7. In view of the above, the Tribunal is not satisfied that the applicant will comply with the conditions of the Bridging visa regardless of any security bond that may be imposed. The Tribunal is not satisfied that his brother would have the ability to ensure that he complies with the conditions of the Bridging visa despite his expressed intentions to do so.

8. Therefore, the Tribunal finds that the applicant does not meet the requirements of cl.050.223. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

9. 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

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

Linda Symons

         

Member