1928077 (Migration)

[2019] AATA 5683

1928077 (Migration) [2019] AATA 5683 (14 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1928077

MEMBER:Brendan Darcy

DATE:14 October 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 14 October 2019 at 10:11am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful non-citizen – applicant failed to uphold visa conditions – applicant made no genuine attempt to make arrangements to depart Australia – extensive non-compliance with Australia’s migration laws – working unlawfully for a long period – forceful desire to remain in Australia – not satisfied that applicant would abide by visa conditions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 73, 189, 269
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.221, 050.222, 050.223; Schedule 8, Visa Conditions 8101, 8401, 8506, 8564

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 30 September 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 and 050.222.

3. The decision to refuse to grant the visa while a substantive visa was being assessed was made on 4 October 2019 on the basis that the applicant will not uphold one or more of the conditions imposed on the bridging visa if were granted.

4. The applicant, a citizen of the Federation of Malaysia (Malaysia) appeared before the Tribunal on 11 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Mrs A], claiming to be the applicant’s friend. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background: the applicant’s visa history

7. The applicant was grant on a [temporary] visa on 27 July 2007 and entered Australia [in] August 2007. The visa was valid until 20 November 2007. The applicant failed to depart before this expiry date and remained in Australia as an unlawful non-citizen and worked illegally for four (4) years and eleven (11) months.

8. This is a considerable amount of time to have failed to regularise the applicant’s visa status,

9. On 18 October 2012, the applicant lodged and was granted a bridging visa for departure purposes which was valid until 7 November 2012. The bridging visa had imposed on it a condition which required the applicant to report to the Department and depart before the visa’s expiry date. The applicant failed to uphold either of these conditions.

10. The applicant became an unlawful non-citizen for a second time on 8 November 2012.

11. The applicant first lodged a Class XA Subclass 866 onshore protection visa on 25 May 2016 and granted an associated bridging visa on 25 May 2016. The applicant failed to fulfil the validity requirements for a protection visa by attending a biometrics appointment. The applicant’s application for protection was deemed invalid and the bridging visa ceased on 17 August 2016.

12. The applicant lodged a second Class XA Subclass 866 onshore protection visa on 19 May 2017 and granted an associated bridging visa on 6 August 2017. The applicant again failed to fulfil the validity requirements for a protection visa by attending a biometrics appointment. The applicant’s application for protection was deemed invalid and the bridging visa ceased on 18 August 2017.

13. The applicant again became an unlawful non-citizen in Australian until a third application for a protection visa was lodged on 12 February 2018 with an associated bridging visa granted on 6 August 2017. Again the protection visa was unlawful due to failing to attend a biometrics appointment. The associated bridging visa ceased on 9 May 2018 and the applicant became an unlawful non-citizen in Australia for another time.

14. The applicant came to the attention of the Victoria Police [in] September 2019 in relation to being served a Family Violence Order. When the Victoria Police made enquires with the Home Affairs Department the applicant was subsequently was detained under s.189 of the Act.

15. The applicant lodged a fourth application for a protection visa while in detention.  On 30 September 2019, the application was deemed valid the applicant’s biometrics were taken when he was inducted into immigration detention appointment.  

16. This bridging visa under review is associated with that protection visa application. The applicant was interviewed by an officer of the Department for this bridging visa on 3 October 2019. The applicant was also interview during a Located Persons Interview [in] September 2019.

    Immigration status of the applicant - cl.050.211

17. 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). 

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

19. At the time of application for this bridging visa, the applicant was an unlawful non-citizen in the Australian community who was in immigration detention and had applied validly for a protection visa on 30 September 2019 and has not yet been finalised. Accordingly, the applicant meets cl.050.211(1) and cl.050.211(2).

20. Therefore, the applicant meets cl.050.211.

    The grounds for seeking the visa - cl.050.212

21. 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.

22. In this case, the applicant is seeking to meet cl.050.212(3).The applicant does not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the applicant meet cl.050.212.

    Substantive visa application

23. 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.

24. ‘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.

25. The applicant lodged a valid visa application for a Class XA Subclass 866 visa while in immigration detention and was deemed valid on 30 September 2019. The visa has not yet been finalised.  

26. Accordingly, the applicant meets cl.050.212(3).

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

27. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision. There is no suggestion the applicant’s valid protection visa application has been suggestion has yet been finalised by the Department.

28. 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

29. 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).

30. As acknowledged by the applicant in the hearing, the applicant was interviewed in relation to this bridging visa on 3 October 2017. Accordingly, the applicant meets cl.050.222.

    Whether the applicant will abide by conditions - cl.050.223

31. The Tribunal must consider whether the applicant would comply with the conditions, if imposed.

32. 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.

33. 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].

    The delegate considered the following conditions: 8101, 8207, 8401, 8506 and 8564. As discussed in the scheduled hearing, the Tribunal has considered the same conditions.

34. Condition 8101 (Must Not Engaged in Work in Australia):  The applicant has claimed that he will not engage in work if this bridging visa was granted because he has the financial support of [Mr and Mrs A] whom it is further claimed are the applicant’s personal friends. [Mrs A] provided documents to demonstrate a high level of savings and nominated her residential address [as] the address. The applicant denied they had ever been his employers, although he had referred to [Mr A] as his sponsor at least once as part of his oral evidence.

35. During the hearing, the applicant admitted that he travelled to Australia to work and with the expectation in obtaining a work visa. However, at no stage did the applicant apply for a work visa. The applicant that he worked [in a workplace] yet had no opportunity to apply for a visa and therefore became an unlawful non-citizen. The applicant was asked he was compelled to work against his will. He did not respond directly but stated he consulted a friend who told him about a refugee visa and admitted to knowingly have no migration status in Australia.

36. The applicant claimed that he had not worked unlawfully in the months since he last invalidly applied for a protection visa in 2018. This was vouched by the witness who claimed to have materially supported the applicant during this period of time. The Tribunal finds this curious cessation of work lacking in credibility as it was inconsistent with the applicant’s overall admission to having worked unlawfully previous to this period of time, including while he held earlier bridging visas.

37. The applicant has cumulatively lived in Australia without a valid visa for almost ten and a half years. This is an extensive period of time for any person as an unlawful non-citizen. The applicant claimed he unsatisfactorily paid at least three agents for migration advice and assistance in the past, although he was unsure if the agent was lawfully registered to provide such advice and assistance. He applied for three protection visas while in the community but each application were deemed invalid on the basis of non-attendance at biometrics appointments. The Tribunal does not accept the applicant was uninformed and misled about the appointments given the number of invalid applications. Had the applicant a genuine fear of being detained or forcibly removed, he would have properly attended to his migration status as his own personal and urgent responsibility, regardless of the quality of advice he received. There is nothing in the applicant’s visa history to indicate that he has not taken seriously or earnestly his migration status, especially as he claimed to fear being returned to this country of reference as implied in applying for protection visas. It is in this context, that the Tribunal finds that the applicant has knowingly and deliberately travelled to Australia and remained here as an unlawful non-citizen. The applicant did not properly inform himself about making valid protection visa applications because he had little regard for Australia’s migrations laws and because he was able to work unlawfully without being apprehended or harassed by the authorities over such a long period of time.  

38. The applicant insisted that he will no longer take any of the visa conditions or other migration laws as complacently as he had done in the past and requested the Tribunal to provide him with another opportunity. However the Tribunal has formed the informed view that he applicant is strongly motivated to remain in Australia to work with or without the permission of the authorities. This is regardless of any short to medium or even ongoing material and financial support offered by the applicant’s friends, [Mr and Mrs A]. In this regard, the Tribunal makes no adverse inferences or findings about their offers to assist the applicant as lacking in generosity or fidelity.

    For the reasons outlined above, and with particular emphasis on the applicant’s considerable history of non-compliance with Australia’s employment and migration laws, the Tribunal finds there is not only the strong probability of the applicant in breaching condition 8101 but that the applicant has a strong desire to remain in Australia, regardless of the outcome of his application that Australia’s owes him protection obligations.

    Condition 8207 (No study/training condition)   During the hearing, the applicant stated he has never sought further education while in Australia. There is no evidence before the Tribunal that applicant has done so or that he even values education. The Tribunal has formed the view that he is primarily motivated to seek and undertake remunerated work over his extensive time in Australia, regardless of this country’s migration and employment laws. The Tribunal is satisfied the applicant will not breach conditon 8207.

39. Condition 8401 (Report as Directed):  During the scheduled hearing, the applicant admitted that he did not report to the Department when he held a bringing visa for departure purposes in 2012. Neither did the applicant depart as required before the expiry of this visa. The applicant claimed he was unaware of the bridging visa having such conditions and that he was informed by an agent his migration status was being addressed. It is the applicant’s responsibility to become aware of his obligations as a holder of any visa. The Tribunal places little weight on the applicant’s explanation for his non-compliance with condition 8401 in 2012.

40. The Tribunal claimed variously that he reported on several occasions when he held latter bridging visas associated with invalid applications for protection visas; and that he did so on one occasion when he only one of those same visas but could not recall which one. The Tribunal enquired if he could recall where he reported, given he reported there on a regular basis. The applicants claimed it was near or behind [Location 1] in Melbourne. The Tribunal pointed out to the applicant that the compliance office for such reporting was at [Location 2]. The applicant responded that he could not recall the venue accurately.

41. When the Tribunal examined the applicant’s movement record, the applicant did have the 8401 reporting condition for a bridging visa in 2016 but not for the more recent bridging visas.  While the applicant was unable to recall the venue for reporting, on balance and with some reluctance, the Tribunal accepts that he did report as claimed when such a reporting condition had been imposed on a bridging visa he held in 2016. However this does not diminish the Tribunal’s overall concerns about the applicant’s extensive non-compliance. Nor was it assuaged the general evasive and vague explanations proffered by the applicant when responding to the Tribunal’s otherwise reasonable questions about his non-compliance. 

42. Having regard to the applicant’s considerable history of non-compliance towards Australia’s migration and employment laws, the Tribunal finds this a significant factor that would indicate that the applicant’s unreliability to report to the department in a timely manner.  Accordingly it is not satisfied the applicant will uphold condition 8401, if this visa were to be granted.

43. Condition 8506 (Advise of Change of Address): During the applicant’s testimony at the scheduled hearing, the applicant stated that he will remain with [Mr and Mrs A]. However the applicant’s considerable non-compliance indicates the applicant had previously disengaged with contacting the Department when it was required. Nevertheless, with no specific adverse evidence to the contrary, the Tribunal accepts that the applicant is unlikely the applicant will change address in the very near future and the claimed offer of accommodation  to be genuine.

44. However, given the Tribunal has formed a view that the applicant is strongly determined to remain in Australia and to seek unlawful remuneration, the Tribunal finds that the applicant will be strongly tempted to breach Australia’s migration and employment laws in Australia, the Tribunal does not accept the applicant will change address and then notify the Department to evade further detention and forcible removal or the threat of deportation and forcible removal.  Based on these findings, the Tribunal does not accept that the applicant will be complaint with condition 8506 to be imposed a bridging visa.

45. Condition 8564 (Must not Engage In Criminal Conduct) While there are no specific convictions against the applicant’s name, an interim family violence order against him issued against him issued [in] September 2019 exists. A copy of the interim order was provided by the applicant by the Tribunal as it was on his departmental file and not subject to any non-disclosure certificate. The interim order mentions there is a court hearing [in] November 2019.  During the hearing, the Tribunal enquired whether he denied the specific allegation of physical violence against a former intimate partner which triggered his detention. The applicant claimed at the hearing that he could remember or recall details of the alleged incident. The Tribunal pointed out that the applicant had admitted to authorities of making physical contact after an argument but no injury arose from the encounter. The interim order states the applicant had been affected by alcohol and ‘ice’ use. During the hearing, the also denied he partook in illicit substance abuse. There is no conviction against the applicant regarding this matter at the time of decision.

1. Noting a lack of further charges and no current convictions against the applicant, the Tribunal finds the applicant is unlikely to engage in criminal activities in the absence of any criminal findings by any criminal court in Australia against him. The Tribunal has also formed a view that his primarily motivated to remain in Australia for work purposes, lawfully or otherwise, and not criminal actitivies. There is no strong or compelling evidence that he will engage criminal activities. Accordingly, the Tribunal is satisfied that the applicant has the capacity and motivation to uphold condition 8564 on his bridging visa, if it were granted to him.

   Summary

2. The Tribunal acknowledges that the applicant is likely to have his onshore partner visa processed while in immigration detention. It is in this context that such decisions about applicants detained under section 189 of the Act are difficult and the Tribunal’s decision making is to be taken serious.

3. Nonetheless, the assessment of the applicant’s substantive visa by the Department, and if appealed to the Tribunal is likely to be accelerated while detention and the loss of liberty for the applicant will not be substantial or unduly prolonged.

4. Furthermore the Tribunal has formed the firm an overall view the applicant has a forceful desire to remain in Australia as he carried on working with any lawful permission regardless of his precarious and uncertain migration status and that many of his explanation for his historical non-compliance were vague, inconsistent and evasive. The Tribunal is satisfied that the applicant will be strongly and easily tempted to work without lawful permission if this bridging visa were to be granted. Based on his own admission that the applicant has in the past participated in the employment practices as an unlawful non-citizen and has undertaken only half-hearted and lax approaches to addressing his unlawful migration status over an extensive period of time, the Tribunal is not satisfied the applicant will maintain contact with immigration, or that he will report as required because of the applicant’s history of non-compliance over a substantial period of time.  Indeed the Tribunal finds the applicant is so motivated to remain in Australia for work purposes that, if he is released from immigration detention, he will resume his casual disregard for Australia’s migration and employment laws regardless of any conditions imposes on him.

5. 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.

6. As the delegate did not consider a bond in this matter, the Tribunal has not considered it a requirement whether the applicant meets cl.050.223.

7. That is not to say, the Tribunal is not satisfied the applicant will breach the ‘no work’ condition, maintain contact with immigration, or that he will report as required and alert the authorities about a change of address, but only if a security is required.

8. For the stated reasons, the Tribunal is not satisfied that the applicant will abide by any of those conditions regardless of any security that may be imposed. Therefore, the Tribunal finds that the applicant does not meet cl.050.223.

   Conclusions

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

10. 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

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

    Brendan Darcy
    Member