1915093 (Migration)

[2019] AATA 3146

1915093 (Migration) [2019] AATA 3146 (21 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1915093

MEMBER:Brendan Darcy

DATE:21 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 21 June 2019 at 12:38pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – no work requirement – family’s wealth – past unlawful employment – motivated by financial gains – no criminal conduct requirement – past criminal charges and convictions – cultivating cannabis – theft – reporting and notification requirements – non-compliant migration history – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.222, 050.223; Schedule 8, Conditions 8101, 8401, 8506, 8564

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
DFQ17 v MIBP [2019] FCAFC 64

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 5 June 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 clauses.050.211, 050.212 and 050.222.

3. The decision to refuse to grant the visa was made on 7 June 2019 on the basis that the delegate was not satisfied the applicant will meet requirements in clause 050.223 in Schedule 2: that the applicant will abide by the conditions imposed this bridging visa if were granted.

4. The applicant appeared before the Tribunal on 19 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], claiming to be the applicant’s de facto spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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

Background

1. The visa applicant, a citizen of Vietnam, was granted a [student] visa on 27 May 2008. He arrived in Australia [in] July 2008. Between January 2009 and March 2012, the applicant departed and returned to Australia on six occasions.  (During the hearing, the applicant said that he had not completed the [qualification] in [Discipline 1] in which had been enrolled while he held this student visa.)

2. On 15 March 2012, the applicant became an unlawful non-citizen in Australia for the first time and remained an unlawful non-citizen until the applicant applied for a [protection] visa on 10 October 2016. (During the scheduled hearing, the applicant was unable to outline any of the claims he is owed Australia’s protection obligations that he presented at the time of his protection visa.) 

3. The applicant was granted an associated bridging visa while this visa was being determined by the Department.

10.  That visa application was refused by the Department on 19 January 2017. The applicant has claimed that he was not validly notified of the refusal decision and he became unlawful on 23 January 2018 for a second time.

11.  The applicant was residing in the community [until] May 2019 when he was apprehended by the Victoria Police at an address in [Suburb 1] in Melbourne which was subject to a search warrant. He was subsequently charged with cultivating cannabis with an appearance before a magistrate scheduled in October 2019.

12.  The Victoria Police also discovered with the applicant at the same address his de facto spouse, [Ms A], and his biological minor child, [Child B] (date of birth: [date]), who are currently holders of [skilled] visas. Police recorded their concerns for the welfare of the minor as it did not have a bedroom (it was utilised for growing cannabis). 

13.  On 16 May 2019, the applicant was placed into immigration detention under s.189 of the Act.

14.  He was then validly notified on 23 May 2019 of the refusal decision (subject to DFQ17 v MIBP [2019] FCAFC 64). The applicant subsequently and validly applied for the refusal decision to be reviewed by the Tribunal on 27 May 2019. (During the hearing, the applicant stated that he initially requested to be voluntarily removed from Australia while in detention.)

15.  The applicant then applied for this bridging visa under review on 5 June 2019.

16.  The applicant had previously been arrested [in] 2012 for various criminal charges including theft, criminal damage; and [in] 2016 for theft, going equipped to steal and to deal with the proceeds of crime. The applicant was charged and bailed on the first occasion and remanded with bail refused on the second occasion. The applicant received a fine of 750 Australian dollars for the charges outlined above.

Submitted Evidence

17.  The following was provided to the Department:

a)A statutory declaration dated 2 June 2019 by [Ms A] confirming she will support the applicant with accommodation and living expenses

b)Birth certificate  for [Child B]

c)[Bank] statement dated 2 June 2019 issued to [Ms A]

d)Email by the applicant’s representative dated 7 June 2019

e)Copies of the applicant’s mother’s bank statement as proof of their financial ability to pay a security bond of $20,000 AUD and communications between the applicant and his mother.

f)A submission by the applicant’s representative dated 4 June 2019

18.  At the Tribunal hearing the applicant submitted:

a)A statutory declaration by his landlord, [Ms C], confirming his living arrangements commencing 12 June 2019.

b)A gas account bill dated 6 June 2019 in the name of [Ms C] of [specified address].

c)A submission by the applicant’s representative dated 18 June 2019

19.  The applicant’s representative provided a post hearing submission on 20 June 2019 which included:

a)   A submission by the applicant’s representative dated 20 June 2019;

b)   The applicant’s bail undertaking;

c)   Photos of the applicant’s home environment as evidence of cleanliness and nurturing child activities

d)   Cost agreement dated 14 October 2016 between the applicant and his migration agent and the 956 Form dated on the same day; and

e)   The applicant’s mother’s bank statement showing funds of approximately 49,000 Australian dollars as evidence of her ability to support the applicant and the mother of the witness, if required.

Procedural matters

20.  There were two non-disclosure notices attached to the applicant’s departmental material.

21.  The first was dated 17 June 2019 and issued under s.375A on the basis that the disclosure of details related to the crime syndicate investigations would be detrimental to Victoria Police.

22.  The second was dated 17 June 2019 and issued under s.376 on the basis that it would be contrary to the public interest to disclose the name and contact details of department and law enforcement officers.

23.   As discussed in the hearing, the Tribunal is satisfied they were both validly issued and the information not to be disclosed to the applicant by the Tribunal was not relevant to the Tribunal’s decision to affirm the decision not to grant the applicant’s visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

Immigration status of the applicant - cl.050.211

24.  Clause 050.211 is met if, at the time of application:

(1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

(2)the applicant was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17). 

25.  The applicant must continue to satisfy this criterion at the time of decision: cl.050.221. 

26.  At the time of application, the applicant had been an unlawful non-citizen since 23 January 2018 and was in immigration detention. 

27.  Accordingly, the applicant meets cl.050.211(1).

28.  The Tribunal is satisfied that the applicant meet the requirement in Subclass 050.211(2) as the applicant was not an eligible non-citizen of the kind set out in regulation 2.20(7), (8), (9), (10), (11) or (17).  Accordingly, the applicant meets cl.050.211(2).

29.  Therefore, the applicant meets cl.050.211.

The grounds for seeking the visa - cl.050.212

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

31.  In this case, the applicant is seeking to meet cl.050.212. The applicant does not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the applicant meets cl.050.212.

Substantive visa application

32.  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.

33.  ‘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.

34.  The Tribunal is satisfied the applicant satisfied 050.212(3)(b) as the applicant made, in Australian a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that the application has not been finally determined.

35.  Accordingly, the applicant meets clause 050.212(3).

Whether the applicant continues to satisfy the time of application criteria - cl.050.221

36.  Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision. The Tribunal is not aware that the applicant’s application for a review of his refused protection visa has been finalised. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl.050.211 and 050.212 and therefore meets cl.050.221.

The requirement to be interviewed by an authorised officer - cl.050.222

37.  Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause. The exceptions are either: the applicant is not in immigration detention, holds a Bridging E visa, has made a valid application for a substantive visa, and will not be seeking a further Bridging visa E visa with different conditions; or, the applicant is not in immigration detention, does not hold (but previously held) a Bridging E visa, has made a valid application for a substantive visa and the authorised interview officer was not available at specific times; or the applicant meets cl.050.212(4AAA) or continues to meet cl.050.212(4AB).

38.  According to the decision record pertaining to the applicant’s refused bridging visa under review, an official of the Department interviewed the applicant on 5 June 2019.

39.  Accordingly, the applicant meets cl.050.222.

Whether the applicant will abide by conditions - cl.050.223

40.  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.

41.  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].

42.  The delegate considered the following mandatory and discretionary conditions to be imposed on the applicant’s bridging visa, if were to be granted:

8101 – No work;

8506 – Notify the Department of any changes of address;

8401 – Report as directed; and

8564 – Must not engage in criminal conduct.

43.  Based on the available evidence, including the applicant’s oral evidence at the scheduled hearing, the Tribunal has considered whether the applicant will be abide by each of these conditions individually, in the order it was discussed during the scheduled hearing:

8101- No Work

44.  The applicant claimed in his written statement and in the hearing that his spouse will be able to financially support the applicant living in the community and that he will not be required to work. He has further added that any additional funding to him and his family can be accessed by his mother and/or the mother of the witness. In this regard, the applicant submitted bank account statements for both his mother and the witness’s mother indicating sizable savings. The applicant elaborated that his spouse earns about 800 Australian dollars after tax per week; that his mother earns considerable amount of money (about the equivalent of 20,000 USD per month) through rental properties; and the witness’s mother owns and operates a [specified] business. The applicant’s spouse has provided a statutory declaration dated 2 June 2019 to confirm this arrangement.

45.  During the hearing, it was relatedly discussed whether the applicant’s mother had genuinely transferred money for a 20,000 Australian dollar security to a bank account owned by the witness. In this regard, the Tribunal noted the witness received a number of cash deposits from a bank in [Suburb 1], New South Wales on 1 June 2019. The applicant submitted to the Department a copy of his mother’s bank account indicating a transfer of money in Vietnamese dong that was the equivalent to 20,000 AUD and that it was dated on 30 June 2019. Accompanying this evidence is a screenshot of a text message exchange between the applicant and his mother. As pointed out in the hearing, the dilemma for the Tribunal is that there is no evidence from the mother’s printed account that money was transferred to the witness. The applicant’s representative explained that the money was transferred to a third party, in this case as a jeweller in New South Wales, who then deposited the money into the witness’ account. It was added that this is a common practice to circumvent the strict limits on money being transferred out of Vietnam. During the hearing, the Tribunal expressed its credibility concerns that the evidence reflected a genuine transfer between the applicant’s mother and his spouse. While the evidence is certainly not definitive, the Tribunal has provided the applicant the benefit of its doubt and accepts the transfer to be genuine and that it reflects his mother’s financial capacity to support the applicant so he will not breach condition 8101.

46.  However there are other considerations. The applicant admitted, albeit not without prevarication, that he worked unlawfully in the community in the past that he has stolen in the past, and that he had admitted to participating in breaching a criminal offence for financial gain when he was arrested for illegally cultivating cannabis. The applicant pleaded various reasons he had diminished responsibility, including not being aware of his unlawful migration status and that he was not aware that he had no work conditions on his bridging visa after his protection visa. He also claimed to be young, stupid and had associated with criminals who misled him. He also claimed that gangs pressured him into illegal activities, including by threatening his family, and he could not escape. He insisted that he is aware of the conditions by which he must abide and that the risks are too high to unlawfully work again.

47.  However, the applicant’s claims about diminished responsibility were unconvincingly and internally incoherent. On the one hand he claimed that he provided a relative (his uncle) more than 20,000 Australian dollars to apply for a student visa in 2016 and that he was not aware he was unsuccessful or unlawful and that his relative defrauded him; yet on the other hand, he continued to rely on the same uncle that defrauded him 2012 when he applied for a protection visa. The applicant has also tried to additionally advance that he was overly trusting of a relative due to traditional Vietnamese deference. The Tribunal finds this unconvincing in the context of the earlier claimed fraud by the same relative. When the Tribunal enquired if he was aware of the claims regarding the reasons Australia owes him protection obligations at the time of application in 2016, the applicant claimed he was not aware. He claimed his uncle provided the application and that he received an email that he had a bridging visa with a no-work condition, yet he continued to work. The Tribunal notes that the applicant changed or shifted his testimony during the hearing that he went to an agent to support his protection visa application in October 2015 and that the agent failed to follow the applicant when his protection visa was refused by a primary decision maker. In this regard, the applicant acknowledged his negligence but it does not accept, as his representative has argued, that it was beyond his control or explains the reasons he could not recall any of the claims made in his protection visa application. Furthermore this does not explain his ignorance about his no-work condition imposed on the associated bridging visa granted when he applied for a protection visa. Neither it is acceptable the applicant did not maintain vigilance or seek to have a new authorised appointee to assist him in migration.

48.  The Tribunal also finds the implausible argument that the applicant relied on Vietnamese practice or tradition or deference when he trusted his defrauding uncle to handle his migration status to be incongruous and risible given the applicant has shown no deference or regard towards Australia’s criminal and migration laws.

49.  With regards to the applicant’s claimed youth and/or foolishness as an explanation, the applicant arrived in Australia as an adult who was assessed as capable of completing a Bachelor degree and with an adequate level of English language capacity. For these reasons, the applicant cannot credibly claim that his behaviour was attributable to his youth or foolishness or even his lack of English language capacity.  In this regard, they have not claimed any mental health problems relating to diminished responsibility.

50.  More worrisome is the applicant’s admission that he not only worked as an unlawful non-citizen when he assisted a criminal enterprise, he sought remuneration for an illegal activity and said that he found the money so tempting. Furthermore, it appeared unnecessary for the applicant to have worked unlawfully in Australia, as he claimed that his mother and his witness’s mother were cumulatively wealthy. It was also open to him and his spouse to depart Australia given the applicant’s claim he was forced into the criminal activities which led to his arrest and then detention. Regardless of this good fortune, he undertook unlawful work and illegal activities for financial gain. The applicant then attempted to advance that this mother and the mother of his spouse would prefer his child to remain in Australia due to Vietnam’s alleged relatively high rates of food hygiene and contamination compared to Australia. The Tribunal asked whether the applicant had his priorities in the correct order given there was an issue of safety for his family as the applicant claimed to fear gangs in Australia who intimidate him into undertaking illegal activities.

51.  The Tribunal makes a further credibility finding about the witness (the applicant’s spouse) in this regard. The witness claimed in her statement and in the hearing that her de facto husband (the applicant) will not breach condition 8101 if the bridging visa was granted because it would not be in the applicant’s or her family’s interest. However, the Tribunal did not find the applicant’s spouse to be a credible or reliable witness. She claimed that she was unaware the applicant was involved in the cultivation of drugs until the police searched the residence in [Suburb 1] in May 2019; that the cultivation of cannabis was restricted to a locked room; and her son was not knowingly or recklessly placed in a dangerous or risky environment. As the Tribunal expressed in the hearing, the witness stretched its credulity in positing this implausible and far-fetched claim. The representative enquired if the Tribunal had a photograph of the residence on the departmental file. (The Tribunal was not able to locate it in the hearing but it had earlier sighted it and said it showed only one room.) The representative said that there was no evidence that a substantial part of the premises were dedicated to illegal and hazardous hydroponics. In the post hearing submission the applicant submitted photographs of the applicant’s child playing in a clean and safe environment. The representative also asked the Tribunal to consider that because the witness was not arrested indicated her credibility. On balance it is accepted that the applicant maintain a relatively clean environment for his child; although this does not diminish the Tribunal’s concerns that the applicant associated with criminals and participated in criminal activities that were inherently unsafe for his biological child and de facto wife. Furthermore, the Tribunal does not accept the witness was not aware the residence was used on behalf of a criminal enterprise or that she was unaware that the applicant was involved with such illicit activities. The witness’ claims about her ignorance about her spouse’s illicit activities in the same residence as she was residing with a vulnerable minor were so far-fetched as to lack any credibility.  Indeed the applicant’s spouse is strongly motivated to ensure her spouse remains in Australia regardless of this country’s migration laws according to her own testimony. During the hearing, the witness expressed her deep reluctance to return to Vietnam with her de facto husband because she had studied and worked so hard to qualify for a career in early childhood development and that she had a passion for this career. The Tribunal said that the Australian authorities was not stopping her from pursuing a similar career in Vietnam and given she and the applicant have relatively wealthy parents they could live comfortably in their home country. The witness insisted she wanted to remain in Australia. In this regard, the Tribunal does not place any weight on the insistence of the applicant’s witness who is not a reliable or credible person that the applicant will abide by condition 8101 if this visa under review were granted.

52.  In considering the evidence as the whole and with particular emphasis on the applicant’s past unlawful employment and illicit remuneration, attempted or otherwise, the applicant has not demonstrated any credible diminished responsibility or ignorance about his migration status.  The applicant cannot credibly circumvent that he had primary and sole responsibility for his own migration status; in whom he relied upon in providing migration advice and assistance; in monitoring his status; in knowing that he applied for a protection visa and the reasons for it; whether he associated with criminals or not; and in mitigating any non-compliance with Australia’s migration laws in a timely manner. The Tribunal finds that the applicant knowingly and wilfully worked both on an unlawful and criminal basis while as an unlawful non-citizen and as a holder of a bridging visa with no work rights. Had he not been apprehended he would have continued to do so in defiance of Australia’s migration laws. At no stage has the applicant or the witness demonstrated that he has any deep regard for the migration laws of Australia. Regardless of his family’s relative wealth back in Vietnam, the safety of his family remaining in Australia and in the light of the applicant’s past unlawful work in Australia and his admission that working unlawfully and/or illicitly in Australia was very tempting, the Tribunal finds that the applicant will not abide by condition 8101 if this visa were to be granted.

8564 – Must not engage in criminal conduct

53.  Between 2012 and 2019, the applicant has collected numerous criminal charges against his name. In 2012, he admitted to the Tribunal that he was convicted of theft and later bailed (although he claimed in the Departmental interview that he did not commit this criminal offence).  The applicant later came to the attention of the authorities in the State of Victoria for drug related offences when his residence in [Suburb 1] was subject to a search warrant. The applicant has also admitted guilt to these offences.  (He denied that he was arrested on 7 June 2012 for three criminal offences and was later refused bail. On balance, the Tribunal accepts this).

54.  The applicant’s representative emphasised to the Tribunal that the applicant had not admitted the offences, expressed remorse and the applicant had been granted bail, which indicated that the authorities did not find him such a risk of reoffending.  While it accepted the applicant expressed his remorse at committing past offences, he has admitted he was motivated by financial means and he was unable to adequately explain that the reasons he placed his spouse and biological child in such jeopardy. The Tribunal finds the seriousness of the applicant’s past offences in the context of his non-compliant migration history invite it to consider that the applicant will not abide by condition 8564, if the visa were to be granted.

55.  It also remains disturbing to the Tribunal that the applicant, his wife and infant child were discovered in a house by the Victoria Police where the applicant had been undertaking a criminal enterprise by illegally growing cannabis on behalf of criminals with whom he was associating solely for financial gain. The Victoria Police have commented that there was no bedroom dedicated to the applicant’s biological child and that this was not a suitable environment. While the applicant claimed that the infant child was safe in their care and that the witness implausibly claimed no knowledge of any illegal cultivation of cannabis, the applicant does not deny criminal offending and long term criminal associations. The applicant and his spouse had the option to depart Australia to live with their parents in Vietnam that they claim to be relatively comfortable or wealthy. Instead they chose to live in a household, undertaking risky and illicit activities on behalf of criminals while further risking any visa being either refused or cancelled or being detained and forcibly removed from Australia. The Tribunal finds that the applicant and the witness’ behaviour not only demonstrate a casual disregard for Australia’s criminal and other laws but a disturbing level of disregard for their biological child’s welfare and development.

56.  The Tribunal notes that the applicant and the witness have been at pains to emphasise to the Tribunal that the applicant had diminished responsibility in being unaware he was an unlawful non-citizen in Australia and that he was encouraged to breach criminal laws in Australia due to a mixture of being young, to being stupid and the influence and/or intimidation of criminal associates. The Tribunal does not accept the applicant, a former 573 visa holder, was not sufficiently mature or educated or competent in English enough or so tied to Vietnamese traditions or deference that he was overly reliant or trusting of relatives (even after being defrauded by one in 2012). The applicant was primarily responsible for knowing and monitoring and addressing his migration status. Indeed he admits to being strongly motivated in the past to commit criminal offences out for avaricious financial and materialistic advantage. For these reasons, the Tribunal does not accept the applicant is strongly motivated to be compliant with condition 8564 for the sake of his family in the context of his history of criminal offences and disregard for Australia’s migration laws. It places no weight on the witness’ insistence that the applicant will be compliant in this regard as she is not a credible or reliable person. Neither does the Tribunal accept the applicant is meaningfully remorseful for the criminal offences committed to the extent that he will not reoffend. Nor does it accept there is any evidence of any material or genuine change in the applicant’s attitude or character on his part regarding conducting further criminal breaches in Australia.

57.  For these reasons, the Tribunal finds that the applicant will not abide by condition 8564 on his bridging visa, if it were granted to him.

8506 – Notify the Department of any changes of address:

58.  The first time the applicant was an unlawful non-citizen for nearly four years and half years (March 2012-October 2016). The second time was over twelve months (January 2012 to May 2019 when he was apprehended for a criminal offence). During these periods of unlawfulness he did not update the department about any change of circumstances in any timely way. The applicant has unconvincingly argued that he was not aware of the unlawful nature of his migration status and that he had diminished responsibility due to his immaturity, his stupidly, his adherence to Vietnamese traditions or practices, unscrupulous relatives and unethical or negligent migration agents/lawyers. However, the Tribunal finds that the applicant has been primarily motivated to remain unlawfully in Australia due to financial considerations and not because he has any genuine interest in his family’s wellbeing or any other consideration. It places no weight on the witness’ insistence that the applicant will be compliant in this regard as she is not a credible or reliable person. Had he not been apprehended by the authorities in May 2019 he would have continued to remain in the community with no lawful migration status. He has no meaningful regard for the migration laws of Australia which include regulations to report to the Department within two days of any changes of address and is strongly motivated to elude the authorities by changing address without any notification.  

59.  There are no credible or compelling reasons before it to accept that the applicant will be notify the Department of any changes of address. Accordingly it finds the applicant will not abide by condition 8506 on his visa if it were granted.

Condition 8401 (Report at a Time or Place As Directed): 

60.  At the scheduled hearing, it was discussed with the applicant that he did not engage with the Department after he became unlawful a second time when he was granted a bridging visa to depart Australia.  He provided the explanation that an unscrupulous relative and an unethical migration agent or lawyer misled him by claiming to the applicant that he held a valid visa. The applicant claimed he never ask for any evidence of the visa being granted and trusted the agent’s verbal undertaking. Yet he claimed to have received an email about a bridging visa.  It is simply not plausible that the applicant would enter into a commercial arrangement with a migration agent or lawyer to lodged visas on his behalf and not seek evidence of the application’s progress or to ensure his migration status was lawful given risk of being detained and deported without holding a visa. As firmly outlined above, the Tribunal does not accept the applicant’s explanations of ignorance and credulity about being unlawful. It places no weight on the witness’ insistence that the applicant will be compliant in this regard as she is not a credible or reliable person. Had he not been apprehended by the authorities in May 2019 he would have continued to remain in the community with no lawful migration status. Accordingly there is no credible evidence that the applicant will not report to the Department as directed. The applicant has invited the Tribunal to find that the applicant has demonstrated wilful disregard towards meaningfully engaging with the Department in the past and he is strongly motivated to elude the authorities by not reporting at a time or place as directed by any official of the Australian government. 

61.  For these reasons, it finds the applicant will not abide with condition 8401 if it were imposed on his visa.

Summary

62.  In this decision, the Tribunal is mindful that the applicant has a protection visa application before the Tribunal that is not yet finalised and that he has significant familial responsibilities towards his spouse and biological child. However, the applicant’s admitted criminal background and his long periods of non-compliance with Australia’s migration laws indicate that the applicant has wilfully and repeatedly breached both Australia’s criminal and migration laws in the past and that he will do so, if this bridging visa under review were to be granted. 

63.  The Tribunal notes that the applicant and the witness have been at pains to emphasise to the Tribunal that the applicant had diminished responsibility in knowing he was an unlawful non-citizen in Australia and that he was encouraged to breach criminal laws in Australia due to a mixture of being young, to being stupid and the influence and/or intimidation of criminal associates. The Tribunal does not accept the applicant, a former [student] visa holder, was not sufficiently mature or educated or competent in English language capacity or so tied to Vietnamese reliance on trusting relatives (even after being defrauded by one in 2012) that he was primarily responsible for knowing and monitoring and addressing his migration status. Neither does it accept there is any evidence of any material or genuine change in the applicant’s attitude on his part regarding conducting further criminal breaches in Australia. The undertakings by the applicant and the witness about abiding by conditions imposed on the applicant, if this visa were to be granted, were hollow and resonating with little integrity.

64.  Taking into consideration all of the evidence and the Tribunal’s adverse findings outlined above, both individually and cumulatively considered, it finds that there is no material or genuine change in the applicant’s attitude on his part regarding upholding the migration or other laws of Australia into the foreseeable future.  In summary, the Tribunal is not satisfied the applicant will abide by either condition 8101, 8506, 8401 or 8564, if this visa were to be granted.

65.  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 any of the conditions discussed, regardless of any security that may be imposed, cl.050.223 is not met.

66.  On the evidence before it, the Tribunal is not satisfied that the applicant will abide by any of the conditions imposed on the visa if granted.

67.  Therefore, the applicant does not meet cl.050.223.

Conclusion

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

69. 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

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

Brendan Darcy
Member