1926134 (Migration)

[2019] AATA 6118

1926134 (Migration) [2019] AATA 6118 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1926134

MEMBER:Mireya Hyland

DATE:26 September 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 26 September 2019 at 7:54pm

CATCHWORDS
MIGRATION – refusal – Bridging E (Class WE) visa – Subclass 050 (Bridging) – unlawful Non-Citizen – applicant failed to uphold visa conditions – applicant made no attempt to make arrangements to depart Australia – remaining in Australia unlawfully on multiple occasions – extensive non-compliance with Australia’s migration laws – work unlawfully for a long period–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 5, 73, 351
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.221, 050.222, 050.223, 050.618 Schedule 8

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
SZGIZ v MIAC [2013] FCAFC 71

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, [Mr A], a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).

2. Mr [A] applied for the visa on 3 July 2019. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, Mr [A] is seeking to satisfy the criteria for the grant of a Subclass 050 visa, which are set out in Part 050 of Schedule 2 to the Migration Regulations (the Regulations). Relevantly to this matter, the primary criteria include cl.050.223, that the Tribunal be satisfied that, if a bridging visa is granted, that the applicant will abide by the conditions imposed on it.

3. The decision to refuse to grant the visa was made on 17 September 2019 on the basis that the delegate was not satisfied that Mr [A] would abide by conditions 8101, 8401, or 8506 and, therefore, did not meet cl.050.223. Mr [A] appeared before the Tribunal on 24 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The issue in this case is whether Mr [A] will comply with condition 8401 to report to the Department of Home Affairs (DOHA) as required, condition 8506 that he inform DOHA of any change of address, and condition 8101 not to work. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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 his or her unlawful conduct.[1]

   [1] Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289 at [15]-[16].

7. 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.

8. In this case, cl.050.212(3A) applies because Mr [A] has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia, being a protection visa, and he has applied for judicial review of a decision to refuse to grant the visa and the judicial proceeding (including any proceedings on appeal) have not been completed. Clause 050.614 prescribes that, in the case of a visa granted to an applicant who is an applicant for a protection visa and meets the requirements of cl.050.212(3A) any one or more of conditions 8104, 8201, 8207, 8401, 8402, 8505, 8506, 8507, 8508, 8509, 8510, 8511, 8512 and 8548 may be imposed, and condition 8101 or 8116 must be imposed if they applied to the last visa held. Clause 050.618 states that in addition to any other condition imposed, condition 8564 may be imposed. In Mr [A]’s case condition 8101 (No Work) is a mandatory condition. The Tribunal considers that the following other conditions should be imposed in the circumstances of this case:

   ·    8207 (No Study)

   ·    8401 (Report as Directed)

   ·    8506 (Notify of Change of Address)

   ·    8564 (Must Not Engage in Criminal Conduct)

9. The Tribunal notes Mr [A] has the following relevant migration history:

   ·    Mr [A] arrived in Australia [in] January 2007 and lodged a protection visa application on 29 January 2007 at which time he was granted a Bridging A (Class WA) Subclass 010 visa. He was not granted the protection visa and appealed that decision to the Tribunal and the various Courts.

   ·    Mr [A] had exhausted all his appeal rights by 2 January 2008, but instead of leaving Australia he remained unlawfully in the community for almost 10 months. He then requested ministerial intervention under s.351 of the Act and was granted a Bridging E (Class WE) Subclass 050 visa.

   ·    Mr [A]’s request for ministerial intervention was not considered and on 21 July 2009 he was granted another Bridging E visa in order to depart Australia. That visa included condition 8511 to present a valid ticket and condition 8401 to report as directed on 11 August 2009. Mr [A] breached those conditions and instead remained in the community unlawfully for almost five years.

   ·    On 23 April 2014 Mr [A] made a second protection visa application in accordance with SZGIZ [2] and was granted a further Bridging E visa, despite having breached the conditions on his last Bridging E visa. After exhausting all his appeals options for his second protection visa application, he again did not leave Australia. When his Bridging E visa ceased on 11 August 2009 he remained in the community as an unlawful non-citizen for another three years until detained.

   [2] SZGIZ v MIAC [2013] FCAFC 71

10. At the hearing the Tribunal put to Mr [A] that the above information was relevant because as well as breaching Australian immigration law and remaining in Australia unlawfully on multiple occasions, on three different occasions he failed to abide by the conditions of his Bridging E visa by failing to report when he was directed, not purchasing a ticket to leave Australia, and not informing DOHA of any change of address. The Tribunal informed Mr [A] that it was concerned that this past behaviour might mean that he would not abide by the conditions on any future Bridging E visa he might be granted.

11. When asked if he would like to comment on the Tribunal’s concerns, Mr [A] gave various explanations for his pattern of migration behaviour. He indicated that he did not understand the conditions of his visas. He thought he had been given a visa to stay in Australia not to arrange to leave Australia. He stated that his English was not good, he did not remember, but he did not think the interpreter at the time was good so he did not understand, and that he was nervous. Mr [A] assured the Tribunal that this time he understood the conditions on his visa and he would abide by them.

12. The Tribunal notes that at an interview with DOHA on 16 July 2019, Mr [A] told the officer that he lived in Victoria and [worked]. In an affidavit made by Mr [A] dated 1 July 2019 he also put his address as being in Victoria and on 17 July 2019 Mr [A]’s migration agent sent DOHA correspondence stating that he had moved to Sydney from Victoria. However, during the interview with DOHA on 13 September 2019 Mr [A] said that he had lived in Sydney for three years, not two months. He said during that time he was being financially supported by a [friend], although he could not provide any details about the friend.

13. The Tribunal put these inconsistencies to Mr [A] at the hearing and suggested to him that it was concerned he has been untruthful about his residence and how he had been supporting himself. It asked him if he would like to comment on its concern that this might indicate that he would not abide by the conditions to keep DOHA apprised of his residence and the need for him to report as required. Mr [A] told the Tribunal that there must have been some confusion. He did not live in Victoria. His friend lived in Victoria for three years or so, although he could not exactly remember. This was the friend who introduced him to his lawyer. He also said that he did have some [friends] who he sees sometimes at [a venue]. Although Mr [A] told the Tribunal that he did not live in Victoria, it notes that his judicial review proceedings have been lodged in Victoria.

14. At the hearing the Tribunal also put to Mr [A] that there is information before it that indicates that he is the Director of a [company], that he works in the cash-in-hand [market], and is otherwise participating in tax avoidance in Australia. It further informed him that there is evidence that he has made over [amounts] in withdrawals between 2011 and 2018 and has remitted over [amounts] offshore. When the Tribunal asked if he would like to comment on its concern that this indicated that he was working illegally in breach of the ‘No Work’ condition on his previous visas he said he had no comment.

15. The Tribunal has considered all the evidence before it, including Mr [A]’s evidence about how he will be supported by his friend and the evidence about [Mr B]’s willingness to provide a security. However, all the evidence before it, viewed cumulatively, leads the Tribunal to find that Mr [A] is not at all credible. When it gave Mr [A] an opportunity to comment on the fact that it is concerned that he is not a truthful witness and so is misleading the Tribunal when he says he will abide by the conditions on any visa, Mr [A] said he had not comment. None of Mr [A]’s explanations about his migration history convince the Tribunal that he has not deliberately stayed in the community unlawfully in order to remain in Australia when he has exhausted his legal options. The fact that he has been inconsistent about his residence and how he has financially supported himself further undermines his claim he is being honest when he says he will report his whereabouts to DOHA as required or not engage in work, as does the information about his company, employment, and tax evasion. The very large sums of money that appear available to Mr [A] from time to time mean both that he has been working unlawfully in the community and that he has the resources to absorb any possible security that the Tribunal may consider imposing.

16. On the evidence before it, the Tribunal is not satisfied that Mr [A] will abide by the conditions imposed on the visa if granted, and that is regardless of any security that may be imposed. His migration history and access to extensive funds convinces the Tribunal that, in particular, he will not report as required or notify DOHA of any change of address which would breach conditions 8401 and 8506. Therefore, Mr [A] does not meet cl.050.223.

17. For these reasons, Mr [A] does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

18. 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

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

    Mireya Hyland
    Member