1920687 (Migration)

[2019] AATA 4120

1920687 (Migration) [2019] AATA 4120 (7 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1920687

MEMBER:Wendy Banfield

DATE:7 August 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 07 August 2019 at 10:17am

CATCHWORDS
MIGRATION – refusal – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful Non-Citizen – came to Australia on a bogus passport – extensive non-compliance with Australia’s migration laws –not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to him –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 73, 137K, 269
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 050.223, Schedule 8

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) and a decision made by an authorised officer relating to requiring a security under s.269 of the Act.

2. The applicant applied for the visa on 24 July 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).

   Background

3. The applicant is a citizen of China and is currently [age] years old. He came to Australia on a Tourist Visa [in] January 2004 while holding a bogus passport issued in a false identify. He applied for a Protection Visa [in] March 2004 which was refused and the decision was later affirmed by the Tribunal. The applicant remained in Australia unlawfully until he was located in 2008. He was granted several Bridging Visas, the last of which expired [in] November 2008. From that date until [date] April 2019 when he was located in Canberra, the applicant lived and worked n Australia unlawfully.

4. The applicant has a partner, also a citizen of China, and two daughters who were born in Australia and had been residing with them prior to being detained. He has applied for judicial review in the Federal Circuit Court relating to a Tribunal decision to affirm the decision of the Department to refuse his application for a Protection Visa.

5. The decision to refuse to grant the visa that is the subject of this review was made on 26 July 2019 on the basis that the applicant would not comply with the conditions imposed on a Bridging Visa if granted. The applicant appeared before the Tribunal on 5 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife Ms [A] and from a friend of the applicant, [Ms B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

7. Prior to and on the day of the hearing, the following evidence was submitted:

   ·     Joint statement in support of the applicant dated 29 July 2019 signed by eight friends living in the ACT. The statement attaches passport and visa information in relation to the signatories. (updated copy provided the hearing);

   ·     [Proof] of Balance Report dated 2 August 2019 in the name of Ms [A];

   ·      Photos of the applicant with his two daughters.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant would abide the conditions attached to a Bridging Visa, if one were granted.

10. 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.

11. In this case, the applicant is seeking to meet cl.050.212(3A). 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.

    Judicial review, merits review, s.137K revocation

12. Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.

13. On the evidence available to the Tribunal, the applicant has applied for judicial review in the Federal Circuit Court of a decision to refuse his application for a Protection Visa and the matter had not been finally determined. Accordingly, the applicant meets cl.050.212(3A).

    Whether the applicant will abide by conditions - cl.050.223

14. 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.

15. 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].

16. In the circumstances of the present case, the Tribunal considers that the conditions below should be imposed if a Bridging Visa were to be granted:

    8101    The holder must not engage in work in Australia.

    8401   

    The holder must report:

    
               

    (a) at a time or times; and

    
               

    (b) at a place;

    
               

    specified by the Minister for the purpose.

    8505The holder must continue to live at the address specified by the applicant before the grant of the visa.

    8506The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.

    8564    Must not engage in criminal conduct.

17. In considering the evidence in the applicant’s case, the Tribunal has had regard to the applicant’s past immigration history, in particular his previous breaches of immigration laws, the significance of the migration laws that were breached, the wilfulness with which those laws have been breached and whether there were any mitigating circumstances justifying their breach.

18. 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.

    The hearing

19. The applicant confirmed during the hearing that he came to Australia on a bogus passport. He travelled to [Country 1] as a visitor and claims he was asked whether he wanted to go to Australia. According to the applicant he had to pay $5,000 which he had at the time. The applicant said he did not travel on his own passport because people from his country cannot obtain a Tourist Visa. The applicant said upon arrival in Australia a migration agent took his passport that included his genuine photo but not his name.

20. The applicant began working in [a certain field] and the migration agent applied for a Protection Visa. The applicant said it had been difficult finding a job and he wanted to obtain a work permit. The applicant said he was granted a Bridging Visa but was unaware of the grounds for applying for the Protection Visa. He added that he was threatened by someone in China and cannot stay there anymore. The applicant confirmed he has a wife and two children in Australia and currently holds a Bridging Visa E. The Tribunal asked the applicant why he was applying for a Bridging Visa. He said one of his children is nearly 10 years old, she will soon be eligible for Australian Citizenship and he wants to be able to stay with the family. The applicant advised one of his daughters has also applied for protection and he wants to await the outcome. The applicant claimed he would depart from Australia if the applications for protection are not successful.

21. The Tribunal asked the applicant how he would support himself if he were granted a Bridging Visa but was unable to work. He declared he has an older brother who is a permanent resident in Australia and he also has friends in Canberra who will support him. The applicant advised he has $10,000 and friends of the family have collected $30,000 to help secure his life in Australia. According to the applicant the house he and his family have been living in belongs to his mother and will be passed to him. The applicant was asked what assurance there was that he would not engage in further work given he had previously been employed [in] Canberra. The applicant said the situation has changed, he is now the father of two children and he needs to be a positive role model for them.

22. The Tribunal put it to the applicant that if he had not been located and detained recently, he would have continued to remain in Australia unlawfully. The applicant claimed he had been trying to find a solicitor to help him to obtain a visa but had been unsuccessful until he was assisted by his current solicitor. The applicant asks the Tribunal to consider that when he was detained, his daughters were very hurt and are afraid of the police. The applicant said he will not behave as he did before and just wants a short-term visa to await the outcome of the matters currently under review. The applicant expressed regret about not complying with Australian migration law in the past but stated that now he has two daughters and nothing is more important. He added that he wants his daughters to be able to study in a good environment here in Australia and does not want to forfeit their opportunity.

23. The applicant’s wife Ms [A] gave evidence that she and the applicant first met around 2001 and have been together for 18 or 19 years. Their daughters are aged [age] and [age] and currently attend primary school. Ms [A] advised she had first come to Australia holding a Tourist Visa and had also held Bridging Visas. Ms [A] pointed to the sum of $30,000 provided by friends so that the applicant will not need to work. According to Ms [A], the applicant has changed no longer wants to live in fear or anxiety. Ms [A] referred to the photos of the applicant with his daughters and advised that the applicant wishes to follow normal legal proceedings. She advised that she and the applicant have a stable address as well is a car and do not need much. Ms [A] added that she had informed the children’s school principal about the situation and was advised that they are able to continue at the school. She said for this reason the family would not move from their current location.

24. The second witness was [Ms B], a friend of the applicant and his family. [Ms B] said she had visited the applicant in detention and understands his current situation. She said she is able to provide financial support and supervision to ensure the applicant would comply with visa conditions. She advised she has a stable income of $58,000 which is due to increase to $80,000 and is capable of providing financial surety in the amount of $50,000. [Ms B] said she first came to Australia in 2012 and in 2013 she had rented a property with the applicant and his family until last year. She said she was prepared to move back in with them in order to provide supervision. The Tribunal asked [Ms B] if she had been aware of the applicant’s visa status and she said she had not been until May of this year. [Ms B] referred to the importance of the applicant to his two children and said it is difficult for them without their father. She also made reference to the older child turning 10 in [year] meaning she will be eligible to apply for Australian Citizenship. She said the applicant would not abscond in light of this.

    Assessment

25. The Tribunal has considered the evidence individually and cumulatively. The applicant’s reason for wanting to be released from immigration detention is to be with his daughters while awaiting the outcome of an application for judicial review. While it is understandable the applicant wishes to be present for his family, the Tribunal finds that on balance the applicant’s immigration history in Australia weighs heavily against him. The applicant first came to Australia unlawfully 15 years ago holding a bogus passport and using a false identity. When the applicant was located and detained on 17 January 2008 he was subsequently granted a Bridging Visa and released from detention. The applicant was granted a further two Bridging Visa and despite having made a $10,000 security payment to ensure his compliance with visa conditions the applicant disengaged with the Department and became unlawful.

26. The Tribunal has considered the evidence regarding funds available to the family to ensure the applicant does not have to work, the statement from friends and witnesses offering support and supervision and the undertaking by [Ms B] that she would be prepared to put up $50,0000 security. Although the applicant claimed his circumstances are different since the birth of his children, the Tribunal is not satisfied based on his past behaviour that the applicant will comply with visa conditions in future. The Tribunal notes the applicant had previously applied for a Bridging Visa on departure grounds and has claimed that he will leave Australia following the outcome of matters currently before the Federal Circuit Court. However the Tribunal does not accept the applicant genuinely intends to depart. The Tribunal does not consider the applicant’s expressions of remorse for his extensive non-compliance with Australia’s migration laws to be genuine and are more likely a result of his having been located and detained.

27. The Tribunal considers that if the applicant had not been located [in] April 2019, he would have remained living in Australia unlawfully. In addition to being in Australia for more than 10  years since last holding a Bridging Visa, the applicant has been employed without any work rights and despite knowing his immigration status. The applicant made the decision to have children in Australia knowing that he did not have a lawful right to remain. The Tribunal is not aware of any mitigating circumstances that would go towards explaining or excusing the applicant being in Australia unlawfully for such a long period.

28. The Tribunal is concerned that [Ms B] was not aware of the applicant’s immigration status and history in Australia until recently but is nonetheless prepared to offer a large sum of money to ensure the applicant’s compliance with visa conditions. Based on the applicant’s history of disregard for Australia’s migration laws, the Tribunal is not satisfied any amount of security will act as an incentive for the applicant to comply with visa conditions.

29. 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.

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

31. 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

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

    Wendy Banfield
    Member