1921458 (Migration)

[2019] AATA 5255

1921458 (Migration) [2019] AATA 5255 (12 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1921458

MEMBER:David McCulloch

DATE:12 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 12 August 2019 at 3:09pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – abide by conditions – criminal conduct – extensive period as unlawful non-citizen – visa used to facilitate continued stay – no evidence of financial security – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 73, 189, 269
Migration Regulations 1994 (Cth), Schedule 2 cls 050.211, 050.212, 050.221, 050.223

CASES

Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289 (VAAN)

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 30 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 1994 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.223.

3. The decision to refuse to grant the visa and the decision relating to requiring a security were made on 1 August 2019 on the basis that the delegate was not satisfied that the applicant would abide by various conditions that were considered should be imposed on the visa and that no amount of security that might be provided would ensure compliance.

4. The applicant appeared before the Tribunal on 8 August 2019 to give evidence and present arguments. The applicant communicated with the Tribunal in English.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant would comply with conditions on the visa imposed pursuant to cl.050.223.

   Applicant’s immigration and other relevant history

7. The decision of the delegate, a copy of which has been provided by the applicant to the Tribunal, outlines the applicant’s immigration and criminal history as follows:

   [The Applicant] has a long immigration history. In short, he first arrived in Australia [in] June 1999 as the holder clan Electronic Travel Authority (ETA) (UD 976). Since then, he has been in and out of Australia several times holding different subclasses.

   I note that [the Applicant] has made several trips in and out of Australia and he last arrived in Australia, holding a student visa (TU572) [in] June 2005.

   On 08 August 2006 [the Applicant’s] student visa subclass TU 572 visa was cancelled under s116 and on same day a Bridging Visa E (BVE) was granted to [The Applicant]. The BVE was valid until 17 August 2006,

   I note that on 17 August 2006 [the Applicant] sought merits review of the cancellation decision at the Administrative Appeals Tribunal (AAT). The AAT affirmed the primary cancellation decision on 12 February 2007. [The Applicant] did not depart Australia nor did he engage with the Department to regularise his immigration status and lie became an unlawful non-citizen in the community.

   On 23 November 2017 [State 1] Police stopped [the Applicant] for random traffic check. [The Applicant] stated he didn't hold any visas. [The Applicant] stated he would report to the Department with his case worker soon. However, departmental systems do not indicate [the Applicant] ever attempted to engage with the department to regularise his Immigration status.

   On 04 April 2019 [the Applicant] was located by [State 1] Police again. [The Applicant] was charged with "[Criminal Charge 1]". [State 1] Police contacted the Immigration Status Service (155) who identified [The Applicant] as an UNC and he was subsequently detained under s189 of the Migration Act. He was later transferred to [Detention Centre 1], where he is currently being accommodated.

   On 28 July 2019 [the Applicant] commenced an application for a Protection Visa (PV) on Form 366C. The Detention Review Officer was informed of associated Bridging Visa E (BVE) application on 30 July 2019 as required under item 1305(3)(c) of Schedule 1 of the Migration Regulations and is the subject of this assessment. I note that in his PV application, [the Applicant] wrote his surname as [Alternate spelling of Applicant surname] who later confirmed with the delegate during that interview that it was typo error and his correct surname is [Applicant surname].

8. In the hearing the Tribunal went through with the applicant his above immigration and criminal charge history in Australia. In all respects the applicant indicated that information was accurate.

9. Later in the delegate’s decision it is indicated that, in relation to the ‘ [Criminal Offence 1]’ , [the] applicant was sentenced to a Conditional Release Order for a period of six months commencing [date]. The decision also indicated that the applicant was found guilty of ‘[Criminal Offence 2]’ and was fined [amount].  In the hearing the applicant agreed that these charges and the [Criminal Offence 2] were correct.

10. The applicant provided to the Tribunal shortly in advance of the hearing his Conditional Release Order from the Local Court of [State 1] indicating that the applicant was found guilty of the offence of ‘[Criminal Offence 1]’ but without proceeding to conviction and directed into a Conditional Release Order for six months.

11. In the hearing the applicant indicated that he had pled guilty to the offence. The applicant indicated that [Criminal Offence 1] in question was a [details deleted].

    Time of application criteria

12. 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.

13. The delegate determined that the applicant satisfied the time of application criteria on the basis of his substantive protection visa application made on 28 July 2019. The Tribunal accepts this to be the case and the time of application criteria are satisfied.

    Whether the applicant will abide by conditions - cl.050.223

    Conditions

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 of Schedule 2 to the Regulations 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.

16. In this case, the conditions which the Tribunal considers should be imposed are condition 8401 (Report As Directed), condition 8506 (Notify Change Of Address), condition 8101 (No Work) and condition 8564 (Must Not Engage In Criminal Conduct).  The Tribunal considers that these conditions are appropriate to the circumstances of the applicant.

17. 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 (2002) 70 ALD 289 (VAAN) at [15]-[16].

18. At the commencement of the hearing the applicant provided a written statement from [Ms A] indicating that she is willing to accommodate her nephew (the applicant) after he is released from [Detention Centre 1]. She indicates that she is a full-time worker.

19. [Ms A] provided a further written statement following the hearing attaching a bank statement indicating a current balance of [amount].

20. In the hearing the applicant indicated that during the 12 years that he was an unlawful non-citizen in Australia he would work cash in hand unlawfully. The applicant indicated in hearing that he has no assets at all. He indicated that his uncle and aunt in Australia have agreed to accommodate and provide for him.

21. The Tribunal discussed with the applicant his protection visa application.  The applicant indicated that this is based on the fear of harm from his family in [Country 1] particularly given their knowledge that the applicant [has a medical condition] which they have only recently learned. However, the applicant indicated that there had been a long-standing fear of harm from his family in returning to [Country 1].

22. The Tribunal explored with the applicant why, then, he would not have made the application for the protection visa at an earlier point in time, noting also that this would have legitimised his status in Australia through the provision of a bridging visa.  In response, the applicant referred to difficulties of money and then indicated that he did not have knowledge of the option to apply for a protection visa.

23. The Tribunal indicated to the applicant in the hearing its preliminary view, based on his migration history, that the applicant would not comply with the conditions it would consider to be imposed on the visa.  The fact of the applicant being unlawful in Australia for 12 years and him working unlawfully during this period would create very significant difficulty for the Tribunal being satisfied that the applicant would comply with the relevant conditions to not work, to report as directed and to notify change of address. This is reinforced by the applicant telling police in 2017 that he would seek to regularise his immigration status but failing to do so.

24. The Tribunal also indicated to the applicant that it could have concerns that the applicant would abide by a condition not to engage in criminal conduct given his conviction  [Criminal Offence 1] and [Criminal Offence 2]. However, the Tribunal acknowledged to the applicant that the convictions were not in relation to overly significant matters and that the Tribunal had less concern with compliance with this condition as compared to the conditions to not work, to report as directed and to notify change of address.

25. In response to the Tribunal’s very significant concerns with respect to the intended conditions, the applicant indicated that he now intends to do the right thing. The applicant indicated that he is tired of running away and lying.

26. The Tribunal has taken into account the applicant’s responses but it is not satisfied, based on the applicant’s migration history in Australia, that he would abide by condition 8401 (Report As Directed), condition 8506 (Notify Change Of Address) and condition 8101 (No Work). The Tribunal considers that there is a significant risk that if the applicant is granted the visa, he would conceal himself in the community and work unlawfully. This is due to the very extensive period in which the applicant has been an unlawful non-citizen, during which time he worked unlawfully to support himself, and the applicant failing to regularise his status in 2017 despite telling police that he would do so. The latter casts similar doubts as to whether the applicant would abide by his undertakings to the Tribunal.

27. The recent application for the protection visa, with no protection visa having been sought in the many years in Australia previously, tends to suggest that it has been undertaken as a strategic measure to facilitate a continued stay in Australia rather than a genuine fear of serious or significant harm in [Country 1]. The Tribunal considers that if the applicant had previously faced a real chance of serious or significant harm in [Country 1] then he would have earlier found out about the option of a protection visa and raised the funds necessary to facilitate its application.

28. The Tribunal has taken into account the fact that the applicant’s uncle and aunt in Australia have indicated that they would accommodate and provide for the applicant however this does not satisfy the Tribunal that the applicant would abide by visa conditions given his significantly adverse migration history. The evidence provided by the applicant’s aunt in terms of a recent bank account statement does not satisfy the Tribunal that there are sufficient resources of relatives available to deter the applicant from a need to seek employment.

    Security

29. 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 Finkelstein J at [21]-[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37]. As indicated, the delegate determined that no amount of security would ensure compliance.

30. 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].

31. The Tribunal noted to the applicant in the hearing that he himself indicated that he has no assets and no evidence had been provided of any third party being in a position to provide financial security to ensure compliance with the conditions. The applicant referred in the hearing to the potential for his uncle and aunt and church colleagues to provide security. The applicant asked to be given time to provide evidence of this. The Tribunal noted that the significantly adverse nature of his migration history tended the Tribunal to the view that no amount of security that might be offered would ensure compliance. The applicant urged the Tribunal to allow him a further day to provide evidence of the individual(s) willing to provide security. The Tribunal granted this request.

32. In response a further statement was provided to the Tribunal by the applicant’s aunt, [Ms A], indicating again that she is willing to accommodate the applicant and to help him financially. A bank statement of [Ms A] was provided indicating a current balance of [amount].

33. While the statement indicates an intent to accommodate and financially support the applicant, it does not indicate an ability or intention to provide a security deposit to ensure compliance. The Tribunal is not satisfied therefore as to the ability of a security deposit to be provided by the applicant or on his behalf.

34. In any event, given the extensive nature of prior immigration breaches by the applicant in Australia, the Tribunal would not have been satisfied that any amount of security deposit that may have been offered would have ensured compliance with the relevant conditions.

    Summary

35. 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.

36. No security deposit has been offered to ensure compliance. In any event, the Tribunal would not have been satisfied that any amount of security deposit that may have been offered would have ensured compliance with the relevant conditions.

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

38. 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

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

    David McCulloch
    Member