1929909 (Migration)

[2019] AATA 6351

1929909 (Migration) [2019] AATA 6351 (29 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1929909

MEMBER:Antonio Dronjic

DATE:29 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 29 October 2019 at 3:28pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – complying with visa conditions – charges of engaging in violent criminal conduct – previous breaches of immigration laws – past convictions and pending criminal charges – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cl 050.212, 050.221, 050.223, 050.613, Schedule 8 Division 050.6

CASES

Applicant VAAN of 2001 v MIMA (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 14 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 (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 was made on 17 October 2019 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 29 October 2019 to give evidence and present arguments. 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.

5. The applicant is [age] years of age and a citizen of Egypt. He had been separated from his partner since 2015. His sister, who is not an Australian citizen or permanent resident, lives and works as [an occupation 1] in [Australian City 1]. The applicant’s parents live in Egypt. Both his parents and sister are aware that he was detained. His sister visited him two days ago at the detention centre.

6. The applicant had completed a [qualification] and worked in [a suburb] as [an occupation 1]. He owns an apartment in [the suburb] which is currently rented out.

   Immigration history

7. He first came to Australia in September 2008 as a holder of a student visa. After completing a [qualification], he was granted a second student visa on 6 May 2011. This visa was cancelled on 12 June 2012.

8. On 18 June 2012 he applied for UK Partner (Temporary) and BS Partner (Residence) visa on the grounds of being in a spousal relationship with an Australian citizen. On 12 March 2014 the applicant was granted a Partner visa, Subclass 820.

9. On 6 August 2015, his application for a permanent visa (Subclass 801) was refused by the Department. According to the primary decision record, the applicant’s temporary partner visa (subclass 820) ceased on 17 August 2015. The applicant remained unlawfully in the community until 17 September 2015 when he was granted a BVE on departure grounds.

10. The applicant did not depart Australia and on 23 September 2015 he applied for review of the Partner visa decision to this Tribunal (differently constituted). On 22 November 2016, the Tribunal affirmed the primary decision. [In] December 2016, the applicant lodged an application for judicial review and [in] September 2017, the matter was remitted to the Tribunal by consent. Eventually, on 15 May 2019, the Tribunal affirmed the primary decision.

11. The applicant’s BVE ceased on 19 June 2019. From 20 June 2019 he was unlawful non-citizen. The applicant stated in his evidence that he knew that his visa ceased but decided to remain in Australia. The applicant gave evidence that he did not contact the Department and made no attempts to legalise his visa status.

12. The applicant stated in his evidence that he lost his Egyptian passport in early 2016. He claims that in March 2016, he applied for the new passport but was told by Egyptian Embassy officials that he will have to wait until his father turns [a specified] age before he can obtain new passport. No documentary evidence supporting this claim was provided to the Tribunal. The Tribunal does not find this explanation plausible.

13. The applicant stated that he was detained by the [state] police and charged with obtaining property by deception and property damage charges. He is scheduled to appear before the Magistrates’ court [in] November 2019. He was previously convicted on stalking and intimidating charges, and last year he was convicted on assault charge and sentenced to 50 hours of community services.

14. Prior to being detained by the [state] police, he worked as [an occupation 1] at [a business]. He stated that he was aware that he was not allowed to work in Australia but had to do so as he was unable to support himself without working. He claims that, for some two and a half years before he was detained, he lived in a rented property at [a named suburb]. He disputed that he had been living in a backpacker’s hotel [in Australian City 1] two weeks prior to being detained.

15. He stated that he is financially supported by his parents. Last week they sent him $300.00. They transferred money to his sister’s account and she brought cash to the applicant. He operates [a named] bank account but has no money on this account. He stated that he has approximately $8,000 debt to [the state transport authority] for unpaid speeding fines and fines for driving unregistered vehicle.

16. 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:

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

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

    ·8564 – The holder must not engage in criminal conduct.

17. 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 BVE. He further stated that on 1 November 2019 he will have an interview with the Departmental officers concerning his protection visa application.

18. The applicant stated that he will not work, if granted BVE but will apply for the work permit because ‘being employed is not just about money but human dignity as well’. He stated that he will be able to live at the Church he attends or alternatively with his sister. The Tribunal observed that the applicant did not provide documentary evidence in support of his claims that he would be able to live at the Church or with his sister.

19. The Tribunal indicated that in making its decision, it will consider the applicant’s immigration history, past criminal convictions and present charges, his evidence and other material held on the Tribunal and Departmental files.

20. The Tribunal expressed its concern that the applicant was illegal in Australia from 17 August 2015 to 17 September 2015 and again from 20 June 2019. The Tribunal further noted that on each occasion, the applicant did not contact the Department and made no attempts to legalise his visa status.

21. 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

22. 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.

23. 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 meets cl.050.212.

24. Based on the evidence before it, including the Department’s records and applicant’s oral evidence the Tribunal is satisfied that the applicant has an ongoing protection visa application.

    Whether the applicant will abide by conditions - cl.050.223

25. 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.

26. 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].

27. 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.

28. In this case, cl.050.613A applies as the applicant has applied for a protection visa on or after 1 July 1997. This clause prescribes that, in addition to mandatory condition 8101, certain other conditions may be imposed. The Tribunal considered the following conditions should be imposed on his visa in the circumstances of this case:

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

    ·8564 – The holder must not engage in criminal conduct.

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

29. The Tribunal considered that the applicant’s immigration history speaks against his current claims that he will comply with conditions placed on his visa.

    Condition 8101

30. The applicant stated in his evidence that, if he was granted BVE with mandatory 8101 condition imposed on it, he will not work but will seek permission from the Department to change conditions of his bridging visa that would allow him to work in Australia.

31. The applicant stated that he has no savings and is currently financially supported by his parents from Egypt. He provided no documentary evidence in support of his claim.

    
    

    He stated that he has no savings and approximately $8,000 debt to [the state transport authority] for unpaid speeding fines and fines for driving unregistered vehicle.

32. The applicant claims that he would be able to live in a Church he attends or at his sister’s place. Again, no documentary evidence was provided to the Tribunal in support of this claim.

33. The applicant gave evidence that he knew he had no permission to work in Australia from 20 June 2019 and despite of this knowledge continued to work as [an occupation 1].

34. Given the applicant’s immigration history, previous breaches of immigration laws, the significance of the migration laws that were breached and the wilfulness with which those laws had been breached, the Tribunal has formed the view that the applicant will not abide by condition 8101.

    Condition 8564

35. Based on the evidence before it and having regard to the totality of the applicant’s past conduct and behaviour, past convictions and pending criminal charges, and having assessed his likely future conduct, the Tribunal is not satisfied that the applicant will not engage in criminal conduct and abide by condition 8564.

    Condition 8401

36. According to the primary decision record, when the applicant’s temporary partner visa (subclass 820) ceased on 17 August 2015, he remained unlawfully in the community until 17 September 2015.

37. He was again, an unlawful not citizen from 20 June 2019. Despite knowing that his visa ceased, he remained living and working in Australia and made no attempts to contact the Department and try to legalise his visa status.

38. Based on the evidence before it, the Tribunal finds that the applicant has failed to present himself to the Department for the periods from 17 August 2015 to 17 September 2015 and again from 20 June 2019 to 1 October 2019. He made no efforts to rectify his unlawful status. Given the applicant’s immigration history and his previous actions, the Tribunal has formed the view that he will not abide by condition 8401.

39. 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.

40. 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

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

    Antonio Dronjic
    Member