1929485 (Migration)

[2019] AATA 4961

1929485 (Migration) [2019] AATA 4961 (25 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1929485

MEMBER:Antonio Dronjic

DATE:25 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 25 October 2019 at 1:26pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – one-way tickets – genuineness of intention to depart as planned – abide by conditions imposed – reporting requirement – departure by specified date requirement – past immigration history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 050.223, 050.617; Schedule 8, Conditions 8401, 8512

CASES
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283

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 15 October 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.050.212 and cl.050.223.

3. The decision to refuse to grant the visa on 17 October 2019 was on the basis that the delegate was not satisfied the applicant will comply with conditions to which the visa would be subject.

4. The applicant appeared before the Tribunal on 24 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the applicant’s spouse and [Ms B], a friend of the applicant’s spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent who attended the Tribunal hearing.

5. At the commencement of the hearing the Tribunal explained to the applicant that the first issue before it is to consider whether the ground for the bridging visa E (BVE) was made out. If the Tribunal is satisfied that the applicant meets one of the alternative grounds set out in cl.050.212, it will then consider what conditions should be imposed if the bridging visa is to be granted and whether the applicant will abide by the conditions.

6. The applicant is [age] years of age and a citizen of China. He is married and has two children aged [age] and [age]. Both children were born in Australia. He met his wife in Australia and they married [in] April 2013. His two [siblings] and parents live in China. The applicant does not have any relatives in Australia. In China he completed [education level] and did not work.

7. He first came to Australia [in] March 2008 as a holder of a student visa. In his evidence he stated that after one week he discontinued his studies and started working. He did not inform the Department that he discontinued his studies. His student visa ceased on 15 March 2010. He remained in Australia and made no attempts to legalise his visa status until 26 April 2013 when he was granted a bridging visa C in relation to the application for a protection visa.

8. His wife was the primary applicant and [the applicant] and his daughter applied as members of her family unit. These applications were refused by the Department on 4 December 2013. The applicants applied for review of the protection visa decision to this Tribunal and, [in] December 2015, the Tribunal affirmed the primary decision. On 18 January 2016, the applicants lodged an application for judicial review and [in] May 2017 the Federal Circuit Court dismissed the application.

9. The applicant was granted a BVE on 16 June 2017 as he indicated to the Department his intention to depart Australia. This BVE ceased on 7 July 2017. The applicant and his family remained in Australia illegally until the applicant was detained on 9 October 2019. The applicant gave evidence that he did not contact the Department and made no attempts to legalise his visa status until he was detained. He stated that he registered a [business] in March 2019 under his wife’s name and continued to work as a [Occupation 1].

10. According to the primary decision record submitted by the applicant with the application, the applicant breached the condition imposed on his last held BVE to report to the Department at a time specified (8401). The applicant and his family were required to attend appointments at the Department’s city office on 7 and 10 July 2017. They failed to do so. The applicant confirmed this to be an accurate statement in his oral evidence.

11. According to the primary decision record, during interview with the Departmental officers held on 16 October 2019, the applicant stated that had he not been detained by the Department, his activities in Australia would have continued in the same manner.

12. He gave evidence that his wife purchased four tickets for China for $1,240. The departure date [is] November 2019. The applicant stated that his passport expired [in] 2017 and that he made a mistake by not renewing his passport earlier. He further stated that his children do not have passports.

13. The applicant confirmed in his evidence that the Department offered him to make a request for Chinese consular assistance and that he refused the offer.

14. The Tribunal enquired as to what steps are being taken by the applicant and his wife to apply for and obtain valid passports for the applicant and his children. The applicant stated that he asked the Department to give his passport to his wife so she can apply for the children’s passports at the Chinese consulate. At this stage, no applications for passports or appointments at the Chinese consulate have been made.

15. The Tribunal noted that the applicant was detained on 9 October 2019 and that his advisor submitted a copy of the Detainee Request Form dated 17 October 2019 by which the applicant requested his passport that is currently held by the Department. The Tribunal enquired as to why the applicant waited seven days before submitting a written request. The applicant’s agent submitted that the applicant made two requests previously.

16. The applicant gave evidence that he and his wife have cash savings of approximately $30,000. He further stated that they own two cars worth between $50,000 and $60,000 and that his customers owe him between $40,000 and $50,000 for [his] work. His lawyer is trying to collect the debt.

17. The Tribunal enquired as to whether the applicant or his wife gave notice to their landlord that they will be leaving Australia [in] November 2019 and that they intend to terminate the tenancy agreement. The applicant stated that they have not done so at this stage, as they are not certain that they will be able to leave on this day as he and the children do not have valid passports.

18. The Tribunal enquired as to what steps the applicant or his wife have taken to try to sell two cars, furniture and other property they have in Australia. The applicant stated that they still need one car to drive the children to [school].

19. The Tribunal informed the applicant that it will consider the following conditions to be imposed in the circumstances of this case if the bridging visa is to be granted and whether the applicant will abide by those conditions:

    ·8401 – The holder must report at a time or times; and at a place; specified by the Minister for the purpose.

    ·8512 – The holder must leave Australia by the date specified by the Minister for the purpose.

    ·8101 – The holder must not engage in work in Australia.

20. The Tribunal explained those conditions to the applicant. The applicant stated that he intends to comply with all of the above stated conditions if granted a BVE. The Tribunal indicated that in making its decision, it will consider the applicant’s immigration history, his evidence, evidence of his witnesses and other material held on the Tribunal and Departmental files.

    Oral evidence of [Ms A]

21. [Ms A] is the applicant’s wife. She came to Australia in 2007 as a holder of a student visa. She was enrolled in a [specified] course which she never completed.

22. The Tribunal enquired as to what steps she took in order to apply for and obtain valid passports for her husband and children. She stated that she needs her husband’s passport in order to apply for the children’s passports. She claims that she does not know if her husband’s passport is still valid or not. The Tribunal enquired as to whether she asked the Department for her husband’s passport and if so when. [Ms A] stated that she did not contact the Department and that her lawyer is doing what is necessary.

23. The Tribunal enquired as to whether she gave notice to their landlord advising that they will be leaving Australia [in] November 2019 and that they intend to terminate the tenancy agreement. She stated that she has not done that as it is uncertain if the passports will be ready [before] November 2019. She and her children will stay in the rented accommodation until they depart Australia and they are willing to lose their bond.

24. The Tribunal enquired as to what steps she took in order to try to sell two cars they own. She stated that she did not place any ads in the papers or obtain quotes from car dealerships. She further stated that her bridging visa ceased yesterday and that she was instructed by the Department to attend their offices today after the hearing.

    Oral evidence of [Ms B]

25. [Ms B] stated that she is an Australian citizen and has been a friend of the applicant’s wife since 2005 or 2006. She communicates with [Ms A] by telephone approximately once per month and the last time she saw her in person was in February 2019.

26. When asked by the Tribunal, [Ms B] stated that she knew that the applicant and his family were illegally in Australia at some point in time. She stated that she attended the Tribunal hearing to provide support to her friend and, if the applicant is released from detention, she is willing to provide financial assistance for her friend and her family. She further stated that she is aware that the applicant and his family are planning to depart Australia [in] November 2019.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The grounds for seeking the visa – cl.050.212

28. 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.

29. In this case, the applicant is seeking to meet cl.050.212(2). The applicant does not claim to meet any of the other alternative criteria in cl.050.212.

    Acceptable arrangements to depart Australia

30. Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The Department’s Procedures Advice Manual 3 (PAM3), whilst not binding on the Tribunal, nevertheless provides some guidance: Chenv MIMIA [2001] FCA 285 at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to the Tribunal to consider whether the applicant’s intentions in making any arrangements to depart are genuine (Lin at [30]).

31. In support of his application the applicant submitted evidence that his wife booked and paid for four one-way tickets from Melbourne to China departing [in] November 2019. The total amount paid for all tickets is $1,240. The applicant and his wife gave evidence that they are taking some steps in order to obtain passports for the applicant and their underage children.

32. The Tribunal has serious reservations about the genuineness of the applicant’s intention to depart Australia as planned. At the time of this decision, neither the applicant nor his children have valid passports. Nor was any application made to the Chinese consulate to obtain passports. The applicant refused to make a request for consular access. He completed a Detainee Request Form (asking for his passport) seven days after he was detained.

33. The applicant was previously granted a BVE on departure grounds in June 2017 and instead of departing Australia he and his family remained in the country illegally for more than two years. The applicant’s immigration history speaks against his current claim that he will depart with his family [in] November 2019.

34. Both of the applicant’s children were born in Australia. [The children are attending school]. The applicant gave evidence that he registered his own [business] in March 2019 (under his wife’s name). The Tribunal finds that the applicant’s incentives to maintain a life in Australia for his family and to continue to operate his business are stronger motivating factors than the motivation to depart.

35. Neither the applicant nor his wife has given notice to their landlord that they will terminate the tenancy agreement. They have not taken any meaningful actions (such as selling their motor vehicles, furniture or other goods) to prepare for their departure. This is not an indication of the applicant’s intention to return to China.

36. Considering the money and the assets the applicant and his wife claim to have in Australia, the Tribunal is not satisfied that the amount of $1,240 paid for the family airfares to China is an amount that they would not be prepared to abandon, given the chance to disappear into the Australian community as they did in the past.

37. However for the purposes of cl.050.212(2), the Tribunal is satisfied that at the time of application the applicant was making acceptable arrangements to depart Australia and he therefore meets cl.050.212.

    Whether the applicant will abide by conditions – cl.050.223

38. 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.

39. 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 immigration 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 at [15]–[16].

40. 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.

41. In this case, cl.050.617 applies because the applicant has made arrangements to depart Australia. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considered the following conditions should be imposed on his visa in the circumstances of this case:

    ·8401 – The holder must report at a time or times; and at a place; specified by the Minister for the purpose.

    ·8512 – The holder must leave Australia by the date specified by the Minister for the purpose.

    ·8101 – The holder must not engage in work in Australia.

42. The Tribunal considered that the applicant’s immigration history speaks against his current claims that he will comply with conditions placed on his visa. The applicant has been in Australia since March 2008. Despite arriving in Australia as a holder of a student visa, after one week he discontinued his studies and started working. He did not inform the Department that he discontinued his studies and the Department did nothing to cancel his student visa.

43. After his student visa ceased on 15 March 2010 he remained in Australia. Again, he made no attempts to legalise his visa status until 26 April 2013 when he was granted a bridging visa C in relation to the application for a protection visa.

44. After the protection visa was refused and the Federal Circuit Court ultimately dismissed their judicial review applications in May 2017, the applicant was granted a BVE on 16 June 2017 based on his indication to the Department that he and his family will depart Australia. This BVE ceased on 7 July 2017. The applicant and his family remained in Australia illegally until the applicant was detained on 9 October 2019. He has been living and working illegally in Australia for more than two years.

45. The applicant gave evidence that he did not contact the Department and made no attempts to legalise his visa status until he was detained. He stated that he registered a [business] in March 2019 under his wife’s name and continued to work as a [Occupation 1].

    Condition 8401

46. Based on the evidence before it, the Tribunal finds that the applicant has failed to present himself to the Department for the periods from 15 March 2010 to 26 April 2013 and again from 8 July 2017 to 9 October 2019. He made no efforts to rectify his unlawful status. The Tribunal further finds that the applicant breached the condition imposed on his last held BVE to report to the Department at a time specified (8401). He confirmed in his oral evidence that he and his family were required to attend appointments at the Department’s city office on 7 and 10 July 2017 and that they failed to do so. Given the applicant’s immigration history and his previous actions, the Tribunal has formed the view that he will not abide by condition 8401.

    Condition 8512

47. As stated above, the applicant was previously granted a BVE on 16 June 2017 on ‘departure grounds’. The applicant and his family remained in Australia illegally until the applicant was detained on 9 October 2019. He has been living and working illegally in Australia for more than two years.

48. In addition, the Tribunal has serious reservations about the genuineness of the applicant’s intention to depart Australia as planned as described in paragraphs 32–36 of this decision record.

49. Given the applicant’s immigration history, his previous actions and his total disregard for Australian laws, the Tribunal has formed the view that he will not abide by condition 8512.

50. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted even if a security is taken. Therefore, the applicant does not meet cl.050.223. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

51. 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

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

   Antonio Dronjic
   Member