1922001 (Migration)

[2019] AATA 4220

1922001 (Migration) [2019] AATA 4220 (19 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1922001

MEMBER:Mark Bishop

DATE:19 August 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 19 August 2019 at 9:39am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful Non-Citizen – applicant made no genuine attempt to make arrangements to depart Australia – extensive non-compliance with Australia’s migration laws – provided false identifying information to Police – 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 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.223, 050.224, 050.225; Schedule 8, Conditions 8101, 8401, 8506

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).

2. The applicant applied for the visa on 2 August 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.050.212 (2) of Schedule 2 to the Regulations.

3. The decision to refuse to grant the visa was made on was made on 6 August 2019 on the basis that the delegate was not satisfied the applicant would not comply with conditions 8101, 8401 and 8506, and had continued a pattern of evasive behaviour with police and during the relevant BVE interview .The applicant appeared before the Tribunal on 16 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicant satisfies relevant requirements in conditions 8101, 8401 and 8506 and  cl.050.223, 050.224, 050.225 and 051.211

   Whether the applicant will abide by conditions - cl.050.223

6. 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.

7. 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].

8. 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.

9. The Tribunal asked the applicant to explain his grounds for seeking review of the delegate’s decision and provide any relevant information to the Tribunal.

10. The applicant advised he was unable to understand the delegate and the line dropped out three times. He was of the view the delegate could not understand his case.

11. The Tribunal asked the applicant to outline any other grounds to support his application.

12. The applicant advised the Tribunal the reasons advanced by the delegate that he would not work in Australia were not correct. His friend can support him. He is like family. He has a good business in Australia. He can get money sent from India. The applicant advised time lines for passport renewal were not known to him. He advised he had a friend who provided Australian dollars to him. In turn his family provided Rupees to his friend’s family in India.

13. The decision record outlined the applicant’s visa and immigration history as follows:

    ·The applicant arrived in Australia [in] February 2014 as a dependant on his ex-wife's Student (TU-572) visa. On 12 September 2014 he lodged a Student (TU-572) visa application in his own right. His original Student (TU-572) visa remained in effect until 14 September 2014 when the visa naturally ceased. He was granted a Bridging (WA010) visa on 16 September 2014 in association to his Student visa application, which was lodged on 12 September 2014. The Student visa application was refused on 24 October 2014 and he sought review of this refusal at the Migration Review Tribunal (MRT), however on 15 April 2015 he failed to attend an interview that was scheduled with the MRT. On 16 April 2015 the MRT affirmed the Student visa refusal. He then took the MRT's decision to the Federal Circuit Court (FCC) [in] May 2015, but chose to withdraw his FCC application [in] November 2015.

    ·He sought Ministerial Intervention (Ml) on 16 December 2015 and was granted multiple Bridging visa Es (BVE) to enable him to remain lawfully in Australia during that process. His Ml request was unsuccessful and on 2 May 2016 it was decided that his case would not be referred to the Minister for consideration.

    ·On 10 May 2016 he was contacted by his Status Resolution Officer and he stated he knew that given his Ml request was unsuccessful he had to return to India. He advised that his mother was purchasing a ticket for him that week to return, and he would provide a copy of the ticket to the officer.

    ·On 11 May 2016, the day after he advised the officer that his mother would be purchasing a ticket for him to return to India, he lodged a Protection (XA-866) application. He was granted a BVE in association to this application. On 4 August 2016 this application was refused. He then sought review of the refusal. The AAT affirmed the refusal on 7 December2018. His BVE ceased on 4 January 2019 and he continued to remain in the community unlawfully until Victoria Police located him [in] June2019.

    ·When Victoria Police located the applicant, he provided false information and was evasive in regard to his identity. While being interviewed by Australian Border Force (ABF) during the Located Persons Interview (LPI) he claimed that he was evasive because he panicked. He also acknowledged that he had been working unlawfully. He claimed that it was not technically working as it was ad hoc, however, he acknowledged that he performed duties for which he received payment, and this is clearly defined by migration legislation as work. The delegate gave significant weight to the fact that on the day he was located by Victoria Police, he was completing a work related delivery and driving without a licence. The delegate also stated he was aware that during the LPI he advised officers that he would be unable to support himself in the community without working.

    ·During the LPI he provided his residential address as [address]. The delegate made a finding that Departmental records did not support this claim that he provided this address to the Department, as required by the conditions of the last BE he held.

14. The delegate went onto summarise a Detention Client Interview (DCI) dated 14 June 2019, a BVE Interview dated 18 June 2019, a statement disputing an AAT affirm decision to which the delegate gave little weight, an interaction with Consular  staff at the Indian embassy which the delegate said was unlikely to have occurred, the lodgement of a BVE application on 2 August 2019 without supporting information, advice of dental issues, the location of an address  for future residence in Victoria about which the applicant was not able to provide relevant detail (rent), denial of previous work for remuneration, a claim of family support from India, denial of any funds debts or assets in Australia, assertion of support from a friend Mr [A], counselling as to the manner of engagement with Victoria Police, ABF and Department of Home Affair Officers,  reasons for grant of a BVE to return to the Australia community (cannot leave Australia because of fear of ex-wife’s family and dental health issues), reasons for applicant failure or that of his friend Mr [A] to provide supporting identity documentation or evidence to support his claims of being willing and able to provide accommodation, food and support, delegate questioning of the veracity of the statement provide by Mr [A], and a delegate finding the applicant would not leave Australia and comply with condition 8401 after Federal court Judicial review.

15. The delegate made a series of general findings as follows:

    ·The applicant had been evasive in all his dealings with departmental officers and had little regard for Australian migration law; that he knowingly breached the conditions of these visas, that he knowingly stayed in Australia beyond the cease date of his last visa for a period of almost six months, that he made no genuine attempt to make arrangements to depart Australia during this time, that he made no attempt to regularise his immigration status during this time, that if he had not been arrested by Victoria Police [in] June 2019 you would still be living and working in Australia as an unlawful non-citizen;

    ·that he has provided false responses to police and during the bridging visa interview;

    ·that he would be prepared to say and do anything to be released from immigration detention and if released would likely breach the conditions of his visa to further suit his desire to remain in Australia for financial gain.

16. The delegate went onto summarise his findings as follows:

    ·The applicant  applied for a Protection application the day after stating that he was going to return India;

    ·The applicant used every avenue available to him including review bodies, Ml, and the courts to extend his time in Australia;

    ·He failed to maintain a valid passport;

    ·He failed to maintain a lawful status;

    ·He failed to maintain an up to date address with the Department. He worked unlawfully while on a BVE with no work rights;

    ·He worked as an Unlawful Non-Citizen;

    ·He made no attempts to regularise his immigration status after his last visa ceased. He was located involuntarily by police;

    ·He provided false identifying information to Police upon being located;

    ·He provided insufficient information to support his Bridging Visa E applications.

17. The applicant provided a statutory declaration  dated 1 August 2019 from a [Mr A] that outlined the following:

    ·He knew the applicant since childhood and for five years in Australia;

    ·He is ready to support the applicant financially and emotionally while his application is ongoing;

    ·He took full responsibility for the applicant’s accommodation, shelter and food and all other basic necessities;

    ·He will support the applicant emotionally as well;

18. He also provided documentation relating to an application in the Federal Circuit Court of Australia (FCCA) and a Tribunal “no-show” decision dated 7 December 2018 in matter number 1613804. The Tribunal reviewed this material and discussed it with the applicant.

19. On 7 December the Tribunal (differently constituted) confirmed a decision to dismiss an application for review. The decision matter was 1613804. The applicant provided a copy of the decision to the Tribunal. [In] July 2019 the application lodged an application before the FCCA. The application outlined the grounds of application for an extension of time and the other interlocutory, interim or procedural orders sought by the applicant. The applicant provided a copy of notice of filing and hearing that showed the application was set down for a directions hearing [in] September 2019. In evidence the applicant advised the Tribunal the hearing set down for [date] September 2019 was one of the grounds for releasing him from detention into the community.

20. The Tribunal considered the information outlined in paragraph 19 above. The applicant did not explain to the Tribunal why he waited until [July] 2019 to lodge an appeal application to the FCCA from a decision of the Tribunal of 7 December 2018. The applicant did not explain to the Tribunal why he had not applied for a Bridging visa or other visa prior to  [July] 2019 that would give him lawful residence in Australia. The applicant did not advise whether he had applied to authorities in the detention centre to attend the FCCA hearing as he attended the Tribunal hearing on 16 August 2019. The Tribunal has regard to the afore-mentioned matters and considerations and deliberations in paragraphs 24, 29, 35, 42 and 43 hereunder.

21. The Tribunal inquired as to the circumstances of the applicant’s visa cancellation on 8 May 2018 and his being brought into immigration detention.

22. The applicant advised he was driving a [vehicle], its registration was expired, the police stopped him and discovered he did not have a valid visa. He advised he was dropping “some stuff” at [location]. The stuff was Indian snacks being delivered to a shop. The applicant agreed it looked like he was working.

23. The Tribunal asked the applicant why he was applying for this BVE. The applicant advised he had been in detention for four months. He suffers from toothache. He gets meds at 6am. He has to apply for his passport. He has to attend a court hearing. He can wait outside the detention centre and get things done.

24. The Tribunal asked how long he intended to remain in Australia. The applicant advised he has a case pending in the Federal Circuit court of Australia (FCCA). He cannot leave as he will attend that case. He advised he could not say how long the matter would take to resolve in the FCCA. He did not provide any information as to a departure date. He did not provide any information as to airline tickets. He did not advise of receipt of funds to pay for an airline ticket. He did not advise he intended to leave Australia.

25. In the past the applicant assisted friends in their [business] in driving a delivery van. In return he received accommodation and food. The Tribunal asked how it could be satisfied he will not work in the future. The applicant advised if he was ready to attend appointments or other places to sign documents that would mean he was not working. The applicant advised it would come down to trust. He had taken an oath to give true information. He had not broken the rules in the past. It comes down to trust.

26. Cash and assets in Australia? He advised he had no property as such. He has $300 in the detention centre.

27. Any debts in Australia? He advised he does not have any debts.

28. How would applicant support himself on a BE? He advised he had a friend who would support him financially. If he needed dental help he can get money sent from India. He advised he had an x-ray on 2^nd of August. He receives Panadol. He advised he had sought treatment. A report had been sent to the police.

29. Will applicant comply with the following conditions?

    ·Condition 8101 no work. The applicant advised he would. The applicant told the Tribunal he had relied upon assistance from friends for the last 2.5 years in Australia for accommodation, food, drink, transport and clothing. He confirmed to the Tribunal it appeared he had been engaged in work with and for friends when detained by the police.  He admitted same to interviewing officers as set out by the delegate. He advised the Tribunal it was a matter of trust that he would not engage in work in the future in breach of such a condition in his visa. The Tribunal has considered the statutory declaration provide by the applicant. The Tribunal is sceptical of this undertaking concerning trust based on past behaviour and the lack of corroborative evidence as to funding sources in the 2.5 years prior to being taken into detention by Victoria Police.

    ·Condition 8401 report as directed. The applicant advised he would. The Tribunal is sceptical of this undertaking as the applicant in recent times failed to maintain a valid passport, failed to maintain a lawful status, failed to maintain an up to date address with the Department, worked unlawfully while on a BVE with no work rights, worked as an Unlawful Non-Citizen, made no attempts to regularise his immigration status after his last visa ceased, was located involuntarily by police and provided an explanation (see paragraph 33 below) for providing another person’s drivers licence to police that lacks credibility

    ·Condition 8506 notify of new or change of address. The applicant advised he would. The Tribunal is sceptical of this undertaking because of inconsistent past behaviour. See immediately above.

30. The Tribunal inquired where he would live if he was released from detention. The applicant advised he would live [with] his friend.

31. The Tribunal inquired how long it would take for him to be issued with a new TD by the Indian consulate. The applicant advised he did not know. He had been advised by friends it takes 10-15 days.

32. The Tribunal inquired of his living arrangements when detained.  The applicant provided evolving evidence to the Tribunal. The applicant advised he was living in [Suburb 1] with a different person then to his place of future residence. The name of the person he lived with in June at time of detention was [Mr B]. He lived at [address]. He had lived at this place for 3-4 years. He paid rent of $400 per month. He then advised he did not pay rent in 2017 and 2018 and 2019. He advised he had not paid rent for a long time. He advised he received food support from other friends. Sometimes other friends gave him money to buy clothes. He advised he had lived with a friend at [Suburb 1] for the past 2.5 years rent free and received assistance from other friends for food, drink, transport, and clothing and like necessities of life. He advised in a period of 128 weeks (being 2.5 years) he paid half or more than half of those weeks. He advised he owes his friend $5,000 to $6,000. The condition of repayment of monies owed was now if he became settled.

33. In summary the applicant confirmed he had lived in Australia in [Suburb 1] for the last 2.5 years, paid rent for some of the time, not for other, received financial support from other friends for food, transport, clothing and drink and would repay past debts if he became settled. The Tribunal asked the applicant why his friends extended such extensive assistance. He advised he also received assistance from India.

34. The Tribunal asked the applicant what he planned to do in the community if granted a visa. The applicant advised he would attend hearings, get a passport and receive dental assistance. He advised Mr [A] would provide all necessary support for as long as necessary as he has extensive business interests.

1. The Tribunal summarised the applicant’s prior numerous statements that indicated he would like to remain in Australia, his detention by police, previous false information to police, non-maintenance of travel documents and of availing himself of all avenues to remain in Australia. The Tribunal asked the applicant why another BVE should be granted to remain in the community while the outcome of his Federal Court judicial review application proceeded. The applicant advised about the police incident it was the first time he was stopped by police. He did provide his ID after he provided the ID of another person. He provided someone else’s drivers licence by mistake. The licence of the other person was kept on the dashboard. His own driver’s licence was normally in in his wallet on his person or placed in the car.  He picked up the other person’s driver’s licence whilst his own driver’s licence remained on his person or in the car. The Tribunal has considered this explanation and is inclined to the view it lacks credibility. He did not wish to say anything else about past interactions with police or government officials.

2. Why did the applicant not provide any information to support his BVE application? The applicant advised he did not know about providing such information. He agreed he had provided one statement from Mr [A]. He advised a guy in detention told him he did not need to provide information. He did not know the name of that guy.

3. The Tribunal asked the applicant if he had any further comment to make. The applicant advised he wished to have a visa. He acknowledged mistakes in the past and trust him. He was not a bad person.

4. The Tribunal asked the applicant on a number of occasions if he wished to provide any material or put before the Tribunal any information in support of his application to review the decision of the delegate. The applicant advised he did not.  The Tribunal asked the applicant whether there was any evidence or information or documents that he wished to bring to the Tribunal’s attention in support of his application to the Tribunal to review the delegate’s decision. The applicant advised he did not wish to provide any further documents or information to the Tribunal. The Tribunal asked the applicant whether there was any circumstances he wished to inform the Tribunal that may support this application. The applicant advised he had no further documentation or information to provide to the Tribunal (excluding, of course the material supplied at the beginning of the hearing).

5. The applicant advised at the end of the hearing he did not wish to make any further comment.

6. When considering cl.050.223, the Tribunal considers 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 considers the likely conduct of the applicant. In that context, relevant considerations  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

7. The Tribunal has reviewed all of the above material. The Tribunal closely observed the applicant during the hearing. The applicant provided no new information to the Tribunal that was not before the delegate when he made his decision on 6 August 2019. The Tribunal has reviewed the relevant applications to the FCCA and Tribunal decisions provided by the applicant.

8. The Tribunal is inclined to the view that the applicant  has generally  been evasive in his dealings with departmental officers and had little regard for Australian migration law, that he  vague, conflicting and inconsistent evidence to the Tribunal as to living and finance arrangements for the 2.5 years prior to being detained by police, that he knowingly breached the conditions of these visas, that he knowingly stayed in Australia beyond the cease date of his last visa for a period of almost six months, that he made no genuine attempt to make arrangements to depart Australia during this time, that he made no attempt to regularise his immigration status during this time, that if he had not been arrested by Victoria Police [in] June 2019 and taken into detention he would still be living and working in Australia as an unlawful non-citizen, that he has provided false responses to police and during the bridging visa interview and did not provide an acceptable explanation to the Tribunal for an action that he characterised as a “mistake” in providing another persons’ driver licence, that he has not made any arrangements to leave Australia, that his application to the FCCA from a “no-show” Tribunal decision has more to do with continuing residence in Australia than anything else,  that he failed to provide any evidence, documentation or information from the administrators of the detention centre that might confirm his assertions as to continuing dental issues,  that his advice to the Tribunal that he could be “trusted” to adhere to visa conditions in the future in the face of repeated and continuing visa condition breaches is not sincere, that he would be prepared to say and do anything to be released from immigration detention and if released would likely breach the conditions of his visa to further suit his desire to remain in Australia for financial gain.

9. The Tribunal is concerned as to the applicant’s past immigration history, in particular previous breaches of immigration laws, the significance of the migration laws that were breached, the wilfulness with which those laws were breached, the lack of any mitigating circumstances justifying their breach and the lack of contrition for past unlawful conduct. In particular see paragraph 27 above.

10. As such the Tribunal is not satisfied that the applicant  will comply with conditions 8101, 8401or 8506 as he has previously admitted to working during his LPI interview with the ABF, he has previously disengaged from the department and has not provided the department with updated details of his change of residential address.

11. The applicant has a demonstrated history of not complying with these conditions. In addition to this, he has continued his pattern of evasive behaviour with police and during a prior BVE interview (as found by the delegate) and in his evidence as to financial support and accommodation in the 2.5 years prior to being placed in detention to the Tribunal. The applicant has not provided any evidence that satisfies the Tribunal that he will not repeat this behaviour and will seek to remain in Australia no matter the outcome of his judicial review.

12. Given the above, the Tribunal is not satisfied that the applicant meets the requirements in clause 050.223 in Schedule 2 of the Regulations as the Tribunal is not satisfied that if the visa is granted the applicant will comply with the conditions imposed on the visa.

13. The Tribunal does not make any adverse findings in terms of cl.050. 224, cl.050.225 and cl.051.211as these clauses do not apply to the applicant.

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

15. 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

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